Knesset legal team to court: Israel can selectively legislate for West Bank

Jpost Arab-Israeli Conflict

Tovah Lazaroff 9/18/2017

The Knesset can legislate for the West Bank in certain cases, even though it is standard practice not to do so, its legal advisers told the High Court of Justice on Tuesday, as they threw their support behind the Settlements Regulation Law.

The court is adjudicating the constitutionality of the legislation, which could authorize up to 4,000 illegal settler homes on private Palestinian property in exchange for compensation to the landowners.

“There would be no need for such a law if there was a normal property dispute,” the Knesset’s chief legal adviser Eyal Yinon and legal assistant Avital Sompolinsky told the court in a 20-page brief.

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The law touches on the issue of the status of Judea and Samaria and the state’s conduct within that region, which “concerns the most sensitive aspects of the diplomatic and political dispute regarding territory in Judea and Samaria,” they wrote.

“The topic of sovereignty and land ownership in Judea and Samaria is a charged issue which lies at the heart of the Israeli-Palestinian conflict and has been at the core of the Israeli public debate for past fifty years.”

Opponents of the legislation include a consortium of 13 non-governmental organizations which petitioned the court, arguing the Knesset has no legislative purview over the territory of Area C of the West Bank.

The application of Israeli law in a region under IDF military and civil control is tantamount to de facto annexation, the NGOs argued.

Yinon and Sompolinsky noted in their briefs that until now, the Knesset and the government have held that Israel’s parliament does not legislate for Area C, where all the Israeli settlements are located.

The Settlements Regulation Law “is unique within the landscape of Israeli legislation,” the brief said. “It’s unconventional because the Knesset has issued territorial legislation for Judea and Samaria.”

But such a law is necessary in this case because no other legal tools exist by which to authorize the homes.

The scope of the law is extremely limited and only applies to homes that are already built. It cannot be applied to illegal homes that would be built in the future, the legal advisers wrote. Further, it only authorizes homes built with government support and in good faith.

At present, the Palestinians have no option for compensation. Neither can they access their property, even in situations where the Civil Administration has razed the illegal settler homes. Moreover, the land expropriation is not permanent and is only until such a time as there is a resolution of the Israeli-Palestinian conflict, the brief stated.

The law is also applicable to illegal Palestinian building on private priority in Area C, the legal advisers wrote. It “applies to all settlement [building in Area C] and does not distinguish between Israeli settlement and Palestinian settlement.

The brief asked the High Court of Justice to reject the NGO petition and uphold the law. It also voiced support of the government’s legal brief, which defended the legislation’s legality as well, including the right of the Knesset to pass laws for Judea and Samara.

In an unusual move, the government brief submitted in August was authored by a private attorney, legal expert Harel Arnon.

Attorney-General Avichai Mandelblit would might typically have defended the legislation, has refused to do so, arguing that it is illegal. He is expected to submit an opinion to the court next month.

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Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law

Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law

Howard Grief

The objective of this paper is to set down in a brief, yet clear and precise manner the legal rights and title of sovereignty of the Jewish people to the Land of Israel and Palestine under international law. These rights originated in the global political and legal settlement, conceived during World War I and carried into execution in the post-war years between 1919 and 1923. Insofar as the Ottoman Turkish Empire was concerned, the settlement embraced the claims of the Zionist Organization, the Arab National movement, the Kurds, the Assyrians and the Armenians.

As part of the settlement in which the Arabs received most of the lands formerly under Turkish sovereignty in the Middle East, the whole of Palestine, on both sides of the Jordan, was reserved exclusively for the Jewish people as their national home and future independent state.

Under the terms of the settlement that were made by the Principal Allied Powers consisting of Britain, France, Italy and Japan, there would be no annexation of the conquered Turkish territories by any of the Powers, as had been planned in the secret Sykes-Picot Agreement of May 9 and 16, 1916. Instead, these territories, including the peoples for whom they were designated, would be placed under the Mandates System and administered by an advanced nation until they were ready to stand by themselves. The Mandates System was established and governed by Article 22 of the Covenant of the League of Nations, contained in the Treaty of Versailles and all the other peace treaties made with the Central Powers – Germany, Austria-Hungary, Bulgaria and Turkey. The Covenant was the idea of US President Woodrow Wilson and contained in it his program of Fourteen Points of January 8, 1918, while Article 22 which established the Mandates System, was largely the work of Jan Christiaan Smuts who formulated the details in a memorandum that became known as the Smuts Resolution, officially endorsed by the Council of Ten on January 30, 1919, in which Palestine as envisaged in the Balfour Declaration was named as one of the mandated states to be created. The official creation of the country took place at the San Remo Peace Conference where the Balfour Declaration was adopted by the Supreme Council of the Principal Allied Powers as the basis for the future administration of Palestine which would henceforth be recognized as the Jewish National Home.

The moment of birth of Jewish legal rights and title of sovereignty thus took place at the same time Palestine was created a mandated state, since it was created for no other reason than to reconstitute the ancient Jewish state of Judea in fulfillment of the Balfour Declaration and the general provisions of Article 22 of the League Covenant. This meant that Palestine from the start was legally a Jewish state in theory that was to be guided towards independence by a Mandatory or Trustee, also acting as Tutor, and who would take the necessary political, administrative and economic measures to establish the Jewish National Home. The chief means for accomplishing this was by encouraging large-scale Jewish immigration to Palestine, which would eventually result in making Palestine an independent Jewish state, not only legally but also in the demographic and cultural senses.

The details for the planned independent Jewish state were set forth in three basic documents, which may be termed the founding documents of mandated Palestine and the modern Jewish state of Israel that arose from it. These were the San Remo Resolution of April 25, 1920, the Mandate for Palestine conferred on Britain by the Principal Allied Powers and confirmed by the League of Nations on July 24, 1922, and the Franco-British Boundary Convention of December 23, 1920. These founding documents were supplemented by the Anglo-American Convention of December 3, 1924 respecting the Mandate for Palestine. It is of supreme importance to remember always that these documents were the source or well-spring of Jewish legal rights and title of sovereignty over Palestine and the Land of Israel under international law, because of the near-universal but completely false belief that it was the United Nations General Assembly Partition Resolution of November 29, 1947 that brought the State of Israel into existence. In fact, the UN resolution was an illegal abrogation of Jewish legal rights and title of sovereignty to the whole of Palestine and the Land of Israel, rather than an affirmation of such rights or progenitor of them.

The San Remo Resolution converted the Balfour Declaration of November 2, 1917 from a mere statement of British policy expressing sympathy with the goal of the Zionist movement to create a Jewish state into a binding act of international law that required specific fulfillment by Britain of this object in active cooperation with the Jewish people. Under the Balfour Declaration as originally issued by the British government, the latter only promised to use their best endeavors to facilitate the establishment in Palestine of a national home for the Jewish people. But under the San Remo Resolution of April 24-25, 1920, the Principal Allied Powers as a cohesive group charged the British government with the responsibility or legal obligation of putting into effect the Balfour Declaration. A legal onus was thus placed on Britain to ensure that the Jewish National Home would be duly established. This onus the British Government willingly accepted because at the time the Balfour Declaration was issued and adopted at the San Remo Peace Conference, Palestine was considered a valuable strategic asset and communications center, and so a vital necessity for protecting far-flung British imperial interests extending from Egypt to India. Britain was fearful of having any major country or power other than itself, especially France or Germany, positioned alongside the Suez Canal.

The term “Jewish National Home” was defined to mean a state by the British government at the Cabinet session which approved the Balfour Declaration on October 31, 1917. That was also the meaning originally given to this phrase by the program committee which drafted the Basel Program at the first Zionist Congress in August 1897 and by Theodor Herzl, the founder of the Zionist Organization. The word “home” as used in the Balfour Declaration and subsequently in the San Remo Resolution was simply the euphemism for a state originally adopted by the Zionist Organization when the territory of Palestine was subject to the rule of the Ottoman Empire, so as not to arouse the sharp opposition of the Sultan and his government to the Zionist aim, which involved a potential loss of this territory by the Empire. There was no doubt in the minds of the authors of the Basel Program and the Balfour Declaration regarding the true meaning of this word, a meaning reinforced by the addition of the adjective “national” to “home”. However, as a result of not using the word “state” directly and proclaiming that meaning openly or even attempting to hide its true meaning when it was first used to denote the aim of Zionism, ammunition was provided to those who sought to prevent the emergence of a Jewish state or who saw the Home only in cultural terms.

The phrase “in Palestine”, another expression found in the Balfour Declaration that generated much controversy, referred to the whole country, including both Cisjordan and Transjordan. It was absurd to imagine that this phrase could be used to indicate that only a part of Palestine was reserved for the future Jewish National Home, since both were created simultaneously and used interchangeably, with the term “Palestine” pointing out the geographical location of the future independent Jewish state. Had “Palestine” meant a partitioned country with certain areas of it set aside for Jews and others for Arabs, that intention would have been stated explicitly at the time the Balfour Declaration was drafted and approved and later adopted by the Principal Allied Powers. No such allusion was ever made in the prolonged discussions that took place in fashioning the Declaration and ensuring it international approval.

There is therefore no juridical or factual basis for asserting that the phrase “in Palestine” limited the establishment of the Jewish National Home to only a part of the country. On the contrary, Palestine and the Jewish National Home were synonymous terms, as is evidenced by the use of the same phrase in the second half of the Balfour Declaration which refers to the existing non-Jewish communities “in Palestine”, clearly indicating the whole country. Similar evidence exists in the preamble and terms of the Mandate Charter.

The San Remo Resolution on Palestine combined the Balfour Declaration with Article 22 of the League Covenant. This meant that the general provisions of Article 22 applied to the Jewish people exclusively, who would set up their home and state in Palestine. There was no intention to apply Article 22 to the Arabs of the country, as was mistakenly concluded by the Palestine Royal Commission which relied on that article of the Covenant as the legal basis to justify the partition of Palestine, apart from the other reasons it gave. The proof of the applicability of Article 22 to the Jewish people, including not only those in Palestine at the time, but those who were expected to arrive in large numbers in the future, is found in the Smuts Resolution, which became Article 22 of the Covenant. It specifically names Palestine as one of the countries to which this article would apply. There was no doubt that when Palestine was named in the context of Article 22, it was linked exclusively to the Jewish National Home, as set down in the Balfour Declaration, a fact everyone was aware of at the time, including the representatives of the Arab national movement, as evidenced by the agreement between Emir Feisal and Dr. Chaim Weizmann dated January 3, 1919 as well as an important letter sent by the Emir to future US Supreme Court Justice Felix Frankfurter dated March 3, 1919. In that letter, Feisal characterized as “moderate and proper” the Zionist proposals presented by Nahum Sokolow and Weizmann to the Council of Ten at the Paris Peace Conference on February 27, 1919, which called for the development of Palestine into a Jewish commonwealth with extensive boundaries. The argument later made by Arab leaders that the Balfour Declaration and the Mandate for Palestine were incompatible with Article 22 of the Covenant is totally undermined by the fact that the Smuts Resolution – the precursor of Article 22 – specifically included Palestine within its legal framework.

The San Remo Resolution on Palestine became Article 95 of the Treaty of Sevres which was intended to end the war with Turkey, but though this treaty was never ratified by the Turkish National Government of Kemal Ataturk, the Resolution retained its validity as an independent act of international law when it was inserted into the Preamble of the Mandate for Palestine and confirmed by 52 states. The San Remo Resolution is the base document upon which the Mandate was constructed and to which it had to conform. It is therefore the pre-eminent foundation document of the State of Israel and the crowning achievement of pre-state Zionism. It has been accurately described as the Magna Carta of the Jewish people. It is the best proof that the whole country of Palestine and the Land of Israel belong exclusively to the Jewish people under international law.

The Mandate for Palestine implemented both the Balfour Declaration and Article 22 of the League Covenant, i.e. the San Remo Resolution. All four of these acts were building blocks in the legal structure that was created for the purpose of bringing about the establishment of an independent Jewish state. The Balfour Declaration in essence stated the principle or object of a Jewish state. The San Remo Resolution gave it the stamp of international law. The Mandate furnished all the details and means for the realization of the Jewish state. As noted, Britain’s chief obligation as Mandatory, Trustee and Tutor was the creation of the appropriate political, administrative and economic conditions to secure the Jewish state. All 28 articles of the Mandate were directed to this objective, including those articles that did not specifically mention the Jewish National Home. The Mandate created a right of return for the Jewish people to Palestine and the right to establish settlements on the land throughout the country in order to create the envisaged Jewish state.

In conferring the Mandate for Palestine on Britain, a contractual bond was created between the Principal Allied Powers and Britain, the former as Mandator and the latter as Mandatory. The Principal Allied Powers designated the Council of the League of Nations as the supervisor of the Mandatory to ensure that all the terms of the Mandate Charter would be strictly observed. The Mandate was drawn up in the form of a Decision of the League Council confirming the Mandate rather than making it part of a treaty with Turkey signed by the High Contracting Parties, as originally contemplated. To ensure compliance with the Mandate, the Mandatory had to submit an annual report to the League Council reporting on all its activities and the measures taken during the preceding year to realize the purpose of the Mandate and for the fulfillment of its obligations. This also created a contractual relationship between the League of Nations and Britain.

The first drafts of the Mandate for Palestine were formulated by the Zionist Organization and were presented to the British delegation at the Paris Peace Conference in 1919. The content, style and mold of the Mandate was thus determined by the Zionist Organization. The British Peace Delegation at the Conference produced a draft of their own and the two then cooperated in formulating a joint draft. This cooperation which took place while Arthur James Balfour was Foreign Minister came to an end only after Lord Curzon, the Foreign Secretary who replaced Balfour on October 24, 1919, took personal charge of the Mandate drafting process in March 1920. He shut out the Zionist Organization from further direct participation in the actual drafting, but the Zionist leader, Chaim Weizmann, was kept informed of new changes made in the Draft Mandate and allowed to comment on them. The changes engineered by Curzon watered down the obvious Jewish character of the Mandate, but did not succeed in suppressing its aim – the creation of a Jewish state. The participation of the Zionist Organization in the Mandate drafting process confirmed the fact that the Jewish people were the exclusive beneficiary of the national rights enshrined in the Mandate. No Arab party was ever consulted regarding its views on the terms of the Mandate prior to the submission of this instrument to the League Council for confirmation, on December 6, 1920. By contrast, the civil and religious rights of all existing religious communities in Palestine, whether Moslem or Christian, were safeguarded, as well as the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion. The rights of Arabs, whether as individuals or as members of religious communities, but not as a nation, were therefore legally assured. In addition, no prejudice was to be caused to their financial and economic position by the expected growth of the Jewish population.

It was originally intended that the Mandate Charter would delineate the boundaries of Palestine, but that proved to be a lengthy process involving negotiations with France over the northern and northeastern borders of Palestine with Syria. It was therefore decided to fix these boundaries in a separate treaty, which was done in the Franco-British Boundary Convention of December 23, 1920. The borders were based on a formula first put forth by the British Prime Minister David Lloyd George when he met his French counterpart, Georges Clemenceau, in London on December 1, 1918 and defined Palestine as extending from the ancient towns of Dan to Beersheba. This definition was immediately accepted by Clemenceau, which meant that Palestine would have the borders that included all areas of the country settled by the Twelve Tribes of Israel during the First Temple Period, embracing historic Palestine both east and west of the Jordan River. The very words “from Dan to Beersheba” implied that the whole of Jewish Palestine would be reconstituted as a Jewish state. Though the San Remo Resolution did not specifically delineate the borders of Palestine, it was understood by the Principal Allied Powers that this formula would be the criterion to be used in delineating them. However, when the actual boundary negotiations began after the San Remo Peace Conference, the French illegally and stubbornly insisted on following the defunct Sykes-Picot line for the northern border of Palestine, accompanied by Gallic outbursts of anti-Semitic and anti-Zionist sentiments, though they agreed to extend this border to include the Galilee but not any of the water sources from the Litani valley and the land adjoining it. As a result, some parts of historic Palestine in the north and northeast were illegally excluded from the Jewish National Home. The 1920 Boundary Convention was amended by another British-French Agreement respecting the boundary line between Syria and Palestine dated February 3, 1922, which took effect on March 10, 1923. It illegally removed the portion of the Golan that had previously been included in Palestine in the 1920 Convention, in exchange for placing the Kinneret (Sea of Galilee) wholly within the bounds of the Jewish National Home, and made other small territorial adjustments. The British and French negotiators had no legal right to remove or exclude any “Palestine territory” from the limits of Palestine, but could only ensure that all such territory was included. The exchange of “Palestine territory” for other “Palestine territory” between Britain and France was therefore prohibited as a violation of the Lloyd George formula accepted at the San Remo Peace Conference.

The 1920 Convention also included Transjordan in the area of the Jewish National Home, but a surprise last-minute intervention by the US government unnecessarily delayed the confirmation of the pending Mandate. This gave an unexpected opportunity to Winston Churchill, the new Colonial Secretary placed in charge of the affairs of Palestine, to change the character of the Mandate: first, by having a new article inserted (Article 25) which allowed for the provisional administrative separation of Transjordan from Cisjordan; second, by redefining the Jewish National Home to mean not an eventual independent Jewish state but limited to a cultural or spiritual center for the Jewish people. These radical changes were officially introduced in the Churchill White Paper of June 3, 1922 and led directly to the sabotage of the Mandate. Thereafter, the British never departed from the false interpretation they gave to the Jewish National Home which ended all hope of achieving the envisaged Jewish state under their auspices.

The question of which state, nation or entity held sovereignty over a mandated territory sparked great debate throughout the Mandate period, and no definitive answer was ever given. That is extremely surprising because the Treaty of Versailles, signed on June 28, 1919 and ratified on January 10, 1920, stated flatly in Article 22 that the states which formerly governed those territories which were subsequently administered by a Mandatory had lost their sovereignty as a consequence of World War I. That meant that Germany no longer had sovereignty over its former colonies in Africa and the Pacific, while Turkey no longer had sovereignty over its possessions in the Middle East, prior to the signing of the Treaty of Versailles. The date when the change of sovereignty occurred could only have been on January 30, 1919, the date when it was irrevocably decided by the Council of Ten in adopting the Smuts Resolution, that none of the ex-German and ex-Turkish territories would be returned to their former owners. These territories were then placed in the collective hands of the Principal Allied and Associated Powers for their disposition. In the case of Palestine, that decision was made in favor of the Jewish people at the session of the San Remo Peace Conference that took place on April 24, 1920 when the Balfour Declaration was adopted as the reason for creating and administering the new country of Palestine that, until then, had had no official existence. Inasmuch as the Balfour Declaration was made in favor of the Jewish people, it was the latter upon whom de jure sovereignty was devolved over all of Palestine. However, during the Mandate period, the British government and not the Jewish people exercised the attributes of sovereignty, while sovereignty in the purely theoretical or nominal sense (i.e. de jure sovereignty) remained vested in the Jewish people. This state of affairs was reflected in the Mandate Charter where the components of the title of sovereignty of the Jewish people over Palestine are specifically mentioned in the first three recitals of the Preamble, namely, Article 22, the Balfour Declaration and the historical connection of the Jewish people with Palestine. These three components of the title of sovereignty were the grounds for reconstituting the Jewish National Home in Palestine as specifically stated in the third recital of the Preamble. On the other hand, since the Jewish people were under the tutelage of Great Britain during the Mandate Period, it was the latter which exercised the attributes of Jewish sovereignty over Palestine, as confirmed by Article 1 of the Mandate, which placed full powers of legislation and of administration in the hands of the Mandatory, save as they may be limited by the terms of the Mandate.

This situation continued so long as the Mandate was in force and the Jewish people living in Palestine were not able to stand alone and hence not able to exercise the sovereignty awarded them by the Principal Allied Powers under international law.

The decisive moment of change came on May 14, 1948 when the representatives of the Jewish people in Palestine and of the Zionist Organization proclaimed the independence of a Jewish state whose military forces held only a small portion of the territory originally allocated for the Jewish National Home. The rest of the country was in the illegal possession of neighboring Arab states who had no sovereign rights over the areas they illegally occupied, that were historically a part of Palestine and the Land of Israel and were not meant for Arab independence or the creation of another Arab state. It is for this reason that Israel, which inherited the sovereign rights of the Jewish people over Palestine, has the legal right to keep all the lands it liberated in the Six Day War that were either included in the Jewish National Home during the time of the Mandate or formed integral parts of the Land of Israel that were illegally detached from the Jewish National Home when the boundaries of Palestine were fixed in 1920 and 1923. For the same reason, Israel cannot be accused by anyone of “occupying” lands under international law that were clearly part of the Jewish National Home or the Land of Israel. Thus the whole debate today that centers on the question of whether Israel must return “occupied territories” to their alleged Arab owners in order to obtain peace is one of the greatest falsehoods of international law and diplomacy.

The most amazing development concerning the question of sovereignty over Palestine is that the State of Israel, when it finally had an opportunity to exercise its sovereignty over all of the country west of the Jordan, after being victorious in the Six Day War of June 5-10, 1967, did not do so – except in the case of Jerusalem. The Knesset did, however, pass an amendment to the Law and Administration Ordinance of 1948, adding Section 11B, which allowed for that possibility and was premised on the idea that Israel possessed such sovereignty. Israel did not even enforce the existing law on sovereignty passed by the Ben Gurion government in September 1948, known as the Area of Jurisdiction and Powers Ordinance, which required it to incorporate immediately any area of the Land of Israel which the Minister of Defense had defined by proclamation as being held by the Defense Army of Israel.

Israel’s legal rights and title of sovereignty over all of the Land of Israel – specifically in regard to Judea, Samaria and Gaza – suffered a severe setback when the Government of Prime Minister Menahem Begin approved the Camp David Framework Agreement for Peace in the Middle East, under which it was proposed that negotiations would take place to determine the “final status” of those territories. The phrase “final status” was a synonym for the word “sovereignty”. It was inexcusable that neither Begin nor his legal advisers, including Aharon Barak, the future President of the Israel Supreme Court, knew that sovereignty had already been vested in the Jewish people and hence the State of Israel many years before, at the San Remo Peace Conference. The situation became much worse, reaching the level of treason when the Government of Prime Minister Yitzhak Rabin signed the Declaration of Principles (DOP) with the Palestine Liberation Organization (PLO) and agreed to give it about 90% or more of Judea and Samaria and most of Gaza over a five-year transitional period in order to “achieve a just, lasting and comprehensive peaceful settlement and historic reconciliation through the agreed political process” with the Arabs of Palestine. The illegal surrender of territory to the “Palestinian Authority” originally called the “Council” in Article IV of the DOP was hidden by the use of the word “jurisdiction” instead of “sovereignty” in that article. Further dissimulation was shown by the sanitized reference to “redeployment of Israeli military forces in Judea, Samaria and the Gaza Strip” to disguise the illegal act of transferring parts of the Jewish National Home to the PLO. A spade was not called a spade.

To understand why even the State of Israel does not believe in its own title of sovereignty over what are wrongfully termed “occupied territories” even by leading politicians and jurists in Israel, it is necessary to locate the causes in the Mandate period:

  1. The non-ratification of the Treaty of Sevres of August 10, 1920 with Turkey which contained the San Remo Resolution on Palestine and the non-inclusion of this Resolution in the Treaty of Lausanne of July 24, 1923. This gave the wrong impression that the legal status of Palestine as a whole was never settled definitively as being the Jewish National Home under international law and that Turkey did not lose its sovereignty until the signing of this latter treaty.
  2. The non-enforcement of most of the terms of the Mandate within Palestine itself, according to their true intent and meaning, by both the British government and the British-administered judiciary which servilely served the former to the point of misfeasance.
  3. The deliberate misinterpretation of the meaning of the Mandate by the British government to include obligations of equal weight which it supposedly had undertaken in favor of the Arabs of Palestine, when in actual fact no such obligations ever existed, particularly the obligation to develop self-governing institutions for their benefit, which – on the contrary – were meant for the Jewish National Home.
  4. The issuance of several White Papers beginning with the Churchill White Paper of June 3, 1922 and culminating with the Malcolm MacDonald White Paper of May 17, 1939, whose effect was to nullify the fundamental terms of the Mandate and prevent a Jewish state covering the whole of Palestine from ever coming into being during the British administration of the country. What the British essentially did in governing Palestine was to implement their false interpretations of the Mandate rather than its plain language and meaning. This turned the Mandate Charter upside down and made its aim of a Jewish state unrealizable.
  5. The illegal introduction of Article 25 into the Mandate Charter that after its application on September 16, 1922 led to the dislocation of Transjordan from the Jewish National Home and also had a deleterious influence on the administration of Cisjordan by encouraging the false idea that Arab national rights existed not only in the severed part of the Jewish National Home across the Jordan, but in the remaining part as well.

The end result of British sabotage, misinterpretation, distortion and outright denial of what the Mandate stood for was that Jewish legal rights and title of sovereignty over the whole of Palestine as originally envisaged in the San Remo Resolution and the Mandate became so blurred, obfuscated and confused by the time the Mandate ended that it was no longer understood or held to be true. Not even the legal experts of the Jewish Agency for Palestine and the Zionist Organization asserted Jewish sovereignty over the whole country in any official paper or memorandum submitted to the British government or to the League of Nations.

The mutilation of the Mandate Charter was continued by the United Nations when this new world organization considered the question of Palestine. On August 31, 1947, the United Nations Special Committee on Palestine (UNSCOP) proposed an illegal partition plan which recognized Arab national rights in western Palestine, specifically in the areas of western Galilee, Judea, Samaria, the southern coastal plain from Ashdod to the Egyptian frontier and a portion of the western Negev including Beersheba and what became Eilat. It apparently did not occur to the members of the Committee representing 11 states headed by Swedish Chief Justice Emil Sandstrom, that the UN did not have the legal authority to partition the country in favor of the Arabs of Palestine who were not the national beneficiary of the Mandate entitled to self-determination. The trampling of the legal rights of the Jewish people to the whole of Palestine by the United Nations was in clear violation of the Mandate which forbade partition and also Article 80 of the UN Charter which, in effect, prevented the alteration of Jewish rights granted under the Mandate whether or not a trusteeship was set up to replace it, which could only be done by a prior agreement made by the states directly concerned. The illegal partition plan, with some territorial modifications made in the original majority plan presented by UNSCOP, was then approved by the General Assembly on November 29, 1947 as Resolution 181 (II). The Jewish Agency for Palestine, recoiling from the loss of six million Jews in the Holocaust and trying to salvage something from British misrule of Palestine, accepted this illegal Resolution. By doing so, it lent credence to the false idea that Palestine belonged to both Arabs and Jews, which was an idea foreign to the San Remo Resolution, the Mandate and the Franco-British Boundary Convention of December 23, 1920. The Jewish Agency should have relied on these three documents exclusively in declaring the Jewish state over all of Palestine, even if it was unable to control all areas of the country, following the example of what was done in Syria and Lebanon during World War II.

Another facet of the story that concerned the illegal denial of Jewish legal rights and title of sovereignty over Palestine was the attitude adopted by the United States government towards the infamous British White Paper of May 17, 1939. The United States agreed to the British administration of Palestine pursuant to the Mandate when it signed and ratified the Anglo-American Convention of December 3, 1924. This imposed a solemn obligation on the US government to protest any British violation of this treaty, which had repeated every word, jot and tittle of the Mandate Charter in the preamble of the Convention, regardless of whether the violation affected American rights or those of the Jewish people. Yet when the White Paper was issued in the year of 1939, the US government did not lift a finger to point out the blaring illegalities contained in the new statement of British policy that smashed to smithereens the Balfour Declaration and the Mandate, and brought immense joy to the Arab side. It accepted the incredible British contention that changes in the terms of the Mandate effected by the White Paper did not require American consent because no US rights or those of its nationals were impaired, an argument that was demonstrably false. This US passivity in the face of British perfidy, which was strongly denounced by the venerable David Lloyd George and even by Winston Churchill who had himself contributed to the betrayal of the Jewish people and their rights to Palestine, allowed the British government to get away with the highest violation of international law at the very moment when the Jewish people were about to suffer the greatest catastrophe in their history. There can be no doubt that the Holocaust could have largely been prevented or its effects greatly mitigated had the terms of the Mandate been duly implemented to allow for a massive influx of Jews to their national home.

American inaction against the British government was particularly unforgivable in view of the fact that the articles of the Mandate were a part of American domestic law and the US was the only state which could have forced the British to repudiate the malevolent White Paper and restore the right of the Jews of Europe to gain refuge in their homeland.

Both the Mandate and the Anglo-American Convention have ceased to exist. However, all the rights of the Jewish people that derive from the Mandate remain in full force. This is the consequence of the principle of acquired legal rights which, as applied to the Jewish people, means that the rights they acquired or were recognized as belonging to them when Palestine was legally created as the Jewish National Home are not affected by the termination of the treaty or the acts of international law which were the source of those rights. This principle already existed when the Anglo-American Convention came to an end simultaneously with the termination of the Mandate for Palestine on May 14-15, 1948. It has since been codified in Article 70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This principle of international law would apply even if one of the parties to the treaty failed to perform the obligations imposed on it, as was the case with the British government in regard to the Mandate for Palestine.

The reverse side of the principle of acquired legal rights is the doctrine of estoppel which is also of great importance in preserving Jewish national rights. This doctrine prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. In the Convention of 1924, the United States recognized all the rights granted to the Jewish people under the Mandate, in particular the right of Jewish settlement anywhere in Palestine or the Land of Israel. Therefore the US government is legally estopped today from denying the right of Jews in Israel to establish settlements in Judea, Samaria and Gaza, which have been approved by the government of Israel. In addition, the United States is also debarred from protesting the establishment of these settlements because they are based on a right which became embedded in US domestic law after the 1924 Convention was ratified by the US Senate and proclaimed by President Calvin Coolidge on December 5, 1925. This convention has terminated, but not the rights granted under it to the Jewish people. The American policy opposing Jewish settlements in Judea, Samaria and Gaza is a fit subject for judicial review in US courts because it violates Jewish legal rights formerly recognized by the United States and which still remain part of its domestic law. A legal action to overturn this policy if it was to be adjudicated might also put an end to the American initiative to promote a so-called “Palestinian” state which would abrogate the existing right of Jewish settlement in all areas of the Land of Israel that fall under its illegal rule.

The gravest threat to Jewish legal rights and title of sovereignty over the Land of Israel still comes from the same source that has always fought the return of the Jews to their homeland, namely, the medley of Arabic-speaking Gentiles who inhabit the land alongside the Jews. They no longer call themselves Arabs or Syrians, but “Palestinians”. This has resulted in a switch of national identity. The Palestinians used to be the Jews during the Mandate Period, but the Arabs adopted the name after the Jews of Palestine established the State of Israel and began to be called Israelis. The use of the name “Palestinians” for Arabs did not take general hold until 1969 when the United Nations recognized the existence of this supposed new nation, and began passing resolutions thereafter affirming its legitimate and inalienable rights to Palestine. The whole idea that such a nation exists is the greatest hoax of the 20th century and continues unabated into the 21st century. This hoax is easily exposed by the fact that the “Palestinians” possess no distinctive history, language or culture, and are not essentially different in the ethnological sense from the Arabs living in the neighboring countries of Syria, Jordan, Lebanon and Iraq. The very name of the supposed nation is non-Arabic in origin and derives from Hebrew root letters. The Arabs of Palestine have no connection or relationship to the ancient Philistines from whom they have taken their new name.

It is a matter of the greatest irony and astonishment that the so-called Palestinian nation has received its greatest boost from Israel itself when it allowed a “Palestinian” administration to be set up in the areas of Judea, Samaria and Gaza under the leadership of Yasser Arafat.

The situation in which the Arabs of Palestine and the Land of Israel claim the same legal rights as the Jewish people violates the authentic international law that was created by the San Remo Resolution, the Mandate and the 1920 Franco-British Convention. It is part of the worldwide folly that has occurred since 1969 when the “Palestinian people” were first accorded international recognition, that authentic international law has been replaced by an ersatz international law composed of illegal UN Resolutions. The Fourth Geneva Convention of 1949 and the Hague Regulations of 1907 are acts of genuine international law, but they have no direct application or relevance to the legal status of Judea, Samaria and Gaza which are integral territories of the Jewish National Home and the Land of Israel under the sovereignty of the State of Israel. These acts would apply only to the Arab occupation of Jewish territories, as occurred between 1948 and 1967, and not to the case of Israeli rule over the Jewish homeland. The hoax of the Palestinian people and their alleged rights to the Land of Israel as well as the farce that results from citing pseudo-international law to support their fabricated case must be exposed and brought to an end.

The Arabs of the Land of Israel have ignited a terrorist war against Israel to recover what they consider to be their occupied homeland. Their aim is a fantasy based on a gross myth and lie that can never be satisfied, since that would mean the conversion of the Land of Israel into an Arab country. It is up to the government of Israel to take the necessary steps to remedy what has become an intolerable situation that threatens the Jewish people with the loss of their immutable rights to their one and only homeland.

Posted in History, Israel, Jerusalem, Judea and Samaria, Right of Return, Temple Mount | Tagged , , , , | Leave a comment

Israel endorses independent Kurdish state

World News / September 13, 2017

JERUSALEM (Reuters) – Israel supports the establishment of a Kurdish state, Prime Minister Benjamin Netanyahu said on Wednesday, as Kurds in Iraq gear up for a referendum on independence that lawmakers in Baghdad oppose.

Israel has maintained discreet military, intelligence and business ties with the Kurds since the 1960s, viewing the minority ethnic group — whose indigenous population is split between Iraq, Turkey, Syria and Iran — as a buffer against shared Arab adversaries.

On Tuesday, Iraq’s Kurdish leader Massoud Barzani said he would press ahead with the Sept. 25 referendum despite a vote by Iraq’s parliament rejecting it.

“(Israel) supports the legitimate efforts of the Kurdish people to achieve their own state,” Netanyahu said, in remarks sent to foreign correspondents by his office.

Western powers are concerned a plebiscite in Iraq’s semi-autonomous Kurdish region – including the oil-rich city of Kirkuk – could divert attention from the war against Islamic State militants.

Netanyahu said Israel does however consider the Turkey-based Kurdistan Workers Party (PKK) a terrorist group, taking the same position as Turkey, the United States and the European Union.

An Israeli general told a conference in Washington last week that he personally did not regard the PKK, whose militants have been fighting Turkey for more than three decades, as a terrorist group.

Netanyahu, who is due to address the U.N. General Assembly on Sept. 19, voiced support for “the Kurds’ aspirations for independence” in a speech in 2014, saying they deserve “political independence”.

His latest remarks appeared to be a more direct endorsement of the creation of a Kurdish state.

But they will cut little ice in Baghdad, which has no diplomatic relations with Israel and has strong ties with Israel’s arch-foe Iran.

Iraq’s neighbors — Turkey, Iran and Syria — oppose the referendum, fearing it could fan separatism among their own ethnic Kurdish populations.

Kurds have sought an independent state since at least the end of World War One, when colonial powers divided up the Middle East after the collapse of the multi-ethnic Ottoman Empire.

editing by John Stonestreet

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Palestinians reveal PA torture to JPost, seek justice in Israeli courts

Jpost Arab-Israeli Conflict

By Yonah Jeremy Bob / September 13, 2017

It was like something out of a horror film. His Palestinians interrogators beat him on his legs. They tied to him the ceiling. They denied him food for extended periods and when they gave food it was barely digestible.

When “Sami,” a Palestinian from “Nablus” (names and places altered to protect interviewees’ identities), fell asleep or spent more than a minute going to the bathroom, they dumped water on his head. That was the “good” water. When they got more serious, they dumped scalding hot water on his chest.

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The scars from his interrogation are less noticeable than they were around 15 years ago, but many of them are still there.

Now in his late 30s, Sami recently told his story to The Jerusalem Post, alternating between depression and an eerie out-of-body separation from the events, which can only come from surviving extreme trauma.

But when five members of the Palestinian version of the Shin Bet took him out of his house in the middle of the afternoon in broad daylight during the Second Intifada around 15 years ago, he was a young man.

That was the end of his life as a regular person. “They took all of my life. I can’t get married. I can’t work [jobs which are not on short-term contracts], it is hard for me to speak to people and I always get depressed,” said Sami.

Sami is one of 51 Palestinians tortured by the Palestinian Authority for cooperating with Israel who the Jerusalem District Court, in a blockbuster July 19 ruling, confirmed can sue the PA in Israeli courts for damages.

It involves Palestinian citizens coming before the courts of the Israeli “occupation” to get justice for their mistreatment by their own PA law enforcement between the late 1990s to early 2000s. The decision came after years of testimonies.

Even if Palestinians were cooperating with Israel, if it was to thwart terrorist attacks on Israelis, the court said that the PA is obligated to assist in such efforts under the Oslo Accords. Accordingly, the court said the PA could not treat such Palestinians as criminals, much less torture them.

The majority of the group will now attend hearings before the court on the amount of damages they can expect to receive, as the PA will try to attack the individual’s proofs of their damages. One of the victims is suing for NIS 74 million and the grand total from all of the victims is projected at between NIS 500 million and NIS 700 million – with the different amounts demanded reflecting the severity and length of the torture,

Elon Moreh resident, lawyer and former prosecutor Menachem Kornvich handled the early years of the case about complex jurisdictional and international law issues. As the case moved toward the details of the individual cases, law partners Barak Kedem, Aryeh Arbus, Netanel Rom, and David Zur took over and will continue taking the cases forward.

But there is more to Sami’s personal story.

There was also his trip to the “dentist” to cure his toothache.

Sami said, “My teeth were hurting. They took me to a doctor. The doctor asked, who is he? They told him – he helped Israel. The dentist ripped out some of my teeth – not the teeth that were hurting. This was because they said I had helped Israel.”

Following this incident, Sami said, “I tried to commit suicide… Everyone was against me. I cut open my body with rocks.”

Then there is “Dani.”

Dani is a good bit older than Sami and is now bearded.

He told the Post he was taken by the PA security services on his way to his job, which was in Israel, also in the early part of the Second Intifada.

Unlike Sami’s eerie passiveness, Dani is angry, tries to dominate the physical space and discussion in the room and is far more paranoid about being discovered.

He said he did not know where the initial location they took him was, as they covered his eyes and put a urine-soaked bag on his face.

He said he did not see sunlight for six days, did not know whether it was day or night, was starved or received inedible food and had to urinate in his cell where he slept on the floor.

They exposed him to extreme cold and hot temperatures until he lost consciousness.

His interrogators caused him permanent bruises on his left arm. Asked how his arm was bruised, he responded defensively, “Do I know whether he stabbed me with a fork or a knife?! It happened while my head was covered.”

Finally, Dani broke and told the interrogators, “What do you want from me? You want me to sign that I work with the Shin Bet. Okay, I did. You want me to say that I sold the Temple Mount, that I collaborated with Israel. Whatever you want.

“They hit me in the teeth and kicked me in the testicles,” making it hard for him to urinate, he said.

In a rising fury that seemed to take him back to the interrogation room, Dani said, “I wanted to take a weapon and shoot them and shoot myself!”

Currently, both Sami and Dani live in the center or north center part of the country. Some of the torture victims, like Dani, find work after a period of rehabilitation. Others, like Sami, can never hold down anything but temporary work.

The issue of whether these victims actually helped the Shin Bet is tricky, and you cannot always know if they are telling the truth.

Eventually, Dani admitted that he had worked undercover as a Shin Bet informer.

Asked how he could betray his people, he said, “I am human. I do not love blood. If someone causes bleeding, I’ll attack him. I want to save lives. You are not God who can decide to punish people.”

He said he loves Israel because Israel is “trustworthy and if someone helps them, they help you in the future.”

Dani said working with the Shin Bet was worth it, since even though many Palestinians have ostracized him, he now has an income he and his family can live on and because “if you do a good deed… God watches.”

Posted in Palestine, Conflict Resolution, History, UN Convention Against Torture, Rule of Law | Tagged , , , , | Leave a comment

Israel’s Settlement Regulations Bill and International Law

Israel’s Settlement Regulations Bill and International Law

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[Editor’s Note: After reading Eugene Kontorovich’s post, be sure to read a response to his post by Yaël Ronen and Yuval Shany, “Israel’s Settlement Regulation Bill Violates International Law,” which is being published simultaneously at Just Security.]

Israel’s proposed “Regulations Bill” has attracted broad international criticism, including from the U.S. State Department and the European Union, as well as from opposition Israeli politicians and some government lawyers. The bill seeks to solve a situation in which, over several decades, over one thousand Israeli homes in West Bank settlements have been built in open areas to which Palestinians subsequently asserted property claims, typically based on broad give-aways of state land by the King of Jordan during the Hashemite occupation (1949-67). The homes are in communities built with some level of government involvement. Thus the bill provides the government would compensate the landowners 125% of the value of the land, in order to allow the communities that have been built there to remain.

The plots are generally open, uncultivated fields. The frequently used characterization of “private Palestinian lands” is misleading. In the overwhelming majority of cases, no individual Palestinians have come forward to claim the lands. Indeed, in most cases, no property claimants asserted their interests for decades after houses were built, a situation that in common law would certainly warrant the application of adverse possession doctrines, under which long-term possession of property unprotested by owners can change legal title, exactly to prevent these kinds of conflict between long-term users and owners who slept on their rights . Under Jordanian law, rules of prescription, which would turn the land over to its existing inhabitants, would apply. In cases like the community of Amona, which inspired but are not covered by the law, the Court made its determination without any fact-finding, and the lands claimed by the Palestinian petitioners only slightly overlap with those on which the Israeli homes stand.

Thus the law regulates situations where property claims, often difficult to verify, are being belatedly brought against areas that have seen significant improvement and home-building. Moreover, in the background are two legal doctrines that make the property impasse particularly costly. On one hand, the Israeli Supreme Court exercises broad remedial powers. Instead of merely awarding title to Palestinian claimants, it affirmatively requires the government to destroy all structures whose plots may overlap even in part with the claimed lands. On the other hand, bargaining in the shadow of obscure Jordanian land allotments is made close to impossible by a Palestinian Authority law criminalizing the sale of land to Jews. While Palestinian President Mahmoud Abbas has recently issued an executive order reducing the traditional death penalty to life at hard labor, there are reports that the old punishment may still be enforced de facto.

The central international law argument against the bill is that it exceeds the powers of an occupying power over private property. Assuming, for the sake of argument, that the law of belligerent occupation applies to Israel’s settlements in the West Bank, the central question becomes whether that body of law prohibits eminent domain and similar land use regulation by the occupying power. This argument has focused on Art. 46 of the Hague Convention, which states that “private property cannot be confiscated.” Critics of the Israeli bill have broadly declared that Art. 46 of The Hague Conventions absolutely prohibits any action involving private real property absent military necessity. This is not the established law, but rather one view of a longstanding debate.

Put simply, the ban on “confiscation” of real property does not mean a ban on expropriation, that is, a taking subject to just compensation. “Confiscation” in The Hague Regulations is a narrow term that refers only to certain uncompensated taking, which of course are the kind occupying powers may be particularly wont to make.  To put it differently, “confiscation” does not cover all kinds of property taking or regulation, as is made clear in numerous military manuals that refer to an entire taxonomy of regulation, from confiscation to expropriation to requisition. The U.S. Defense Department’s Law of War Manual provides for compensation for takings of private real property, and refers to this as “appropriation” not “confiscation.”

For example, Prof. Yutaka Arai’s recent treatise on the law of occupation specifically distinguishes the question of “expropriation” with compensation from Art. 46’s ban on “confiscation.” Arai writes that “many experts argue that expropriation … is not forbidden.” He goes on to cite the leading post-war authority George Schwarzenberger as maintaining that ordinary eminent domain for development purposes is not governed at all by the law of occupation. That is, the articles of The Hague Regulations simply do not address this issue.

Some specific examples of permissible purposes for which such eminent domain by occupying powers might be used include “land reform” addressing feudally based land-ownership. Certainly the current property situation in Samaria, created by broad grants to clans by an occupying Jordanian monarch, would qualify. To be sure, there are also authorities that say expropriation is forbidden, but currently there is no resolution of this dispute in theory or practice. That means there is no prohibition, as the basic rule of international law is that action is permitted unless a clear prohibitory norm has emerged.

It is probably unnecessary to discuss the Rome Statute of the International Criminal Court, as Israel is not a member (though the Office of the Prosecutor has controversially purported to accept jurisdiction over “the State of Palestine”). But for thoroughness, it is worth noting the Rome Statute criminalizes the “seizing” of property absent military necessity (Art. 8(2)(b)(xiii)). To be sure, such acts are only criminal for ICC purposes when committed “in the context of … and associated with international armed conflict,” an element that appears missing in the Israeli-Palestinian situation.  In any case, commentaries treat “seizure” as referring to uncompensated takings, analogizing it very closely to crime of “pillage,” which of course requires much more than a switch from property to liability rule protection.

Not surprisingly, those who argue international law forbids such action fail to cite any state practice outside of Israel for this proposition. To be sure, the payment of compensation by belligerent occupiers is probably quite rare, as typically long-term occupiers seem to simply take what they want without bothering about compensation. The entire question of eminent domain – which involves a transfer of title – will only arise in prolonged occupations. In the typical short-term occupation envisioned by the Hague and Geneva treaties, the occupier has no need or interest to change the title to land, which is always about long-term policies.

Yet in several prominent cases, long-term occupiers have used compensated takings, and the international community appears to have acquiesced, and certainly did not declare it illegal.  Examples include the Turkish occupation of Northern Cyprus, where a compensation scheme aimed at permitting Turkish settlers to remain in Greek properties was approved in 2005 by the European Court of Human Rights. Similarly, the Russian occupation of Crimea takes private property with compensation (often in the form of other land), even for highly controversial projects like the Kerch Bridge, which will serve to deeply entrench the occupation and facilitate the transfer of settlers. Yet while many aspects of Russia’s occupation of Crimea have been denounced as illegal by the international community, the use of eminent domain has not. In particular, the ICC Prosecutor’s report on possible Russian crimes in Crimea makes no mention of it. The fact that many aspects of Russia’s Crimean occupation have been explicitly criticized on international law grounds, but this one ignored, suggests that it is not seen as illegal.

Indeed, property owners who have been compensated have no injury to complain of. As the French Government wrote in its submission to the International Court of Justice in the Wall Case, “international law…  requires compensation which effectively makes good the entire injury suffered by the owners of the property in question. Indeed, claims of violations of international law are often accompanied by demands for compensation. This may be the first case where it is the payment of above-market compensation is claimed as an international law violation.

In short, prior to the introduction of the Israeli “Regulations” bill, neither the consensus of commentators nor any state practice supported the view that the prohibition on confiscation or seizure of private property in occupied territories applies to land-use regulations accompanied by the payment of complete compensation.


Gideonstrumpet Note: Under American law, when land is taken by the government, the [former] owner’s sole remedy is an inverse condemnation action for compensation. U.S. law does not provide for specific remedies; only for compensation. Hurley v. Kincaid (1932).

Posted in Israel, Conflict Resolution, History, Rule of Law, Geneva Convention, Judea and Samaria | Tagged , , | Leave a comment

Is the Justice Minister promoting a legal revolution in the West Bank?

Jpost Israel News

By Tovah Lazaroff / September 10, 2017

The Settlements Regulations Law revolutionizes Israel’s perception of how the country’s laws relate to Judea and Samaria, Justice Minister Ayelet Shaked (Bayit Yehudi) told The Jerusalem Post in an interview late last week.

“We want to revolutionize our [legal] perception,” she said. “Foremost is that it is possible for [the Knesset] to legislate [for Judea and Samaria] and in addition that we don’t solve one injustice with another.”

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Shaked spoke in advance of the expected submission to the High Court of Justice, possibly as early as Sunday, of a Knesset legal opinion with regard to the legality of the Settlements Regulation Law.

Shaked has been a vocal advocate for the law that retroactively legalizes close to 4,000 settler homes illegally built on private Palestinian property in exchange for monetary compensation.

Its opponents have argued that it undermines four decades of legal principles that have guided the High Court’s decisions regarding the West Bank.

A consortium of 13 left-wing NGOs that petitioned the court against the law has argued that it is unconstitutional, tantamount to annexation, runs contrary to international law and sanctions land theft of private Palestinian property.

The NGOs have further asserted that such a law would only encourage illegal building in the future.

The law’s supporters have said it was a necessary step to halt the High Court’s rulings that such illegal building must be demolished, even though the Palestinians were not given access to the property.

Shaked said the current situation in which the setters lose their homes, but due to the location of the plots the Palestinians cannot access their property, was “illogical.”

“If a mistake was made, an ancient one, and in any event neither the Palestinians nor the Israelis benefit from destruction, then the law provides a solution that both sides benefit from,” Shaked said.

With this law they at least receive compensation, she added. “The [the Palestinian Authority] has this antisemitic law that those who sell land to Jews face the death penalty,” Shaked explained.

Private attorney Harel Arnon who wrote the 159-page legal brief the government submitted to the court in support of the law, downplayed the idea that his arguments represented any kind of legal shift.

Arnon authored the government’s argument after Attorney-General Avichai Mandelblit refused to support the legislation before the court. He is expected to issue his opinion on the matter in October.

Arnon said the only thing that is unusual in this situation, is that he wrote the government’s opinion and not Mandelblit. He added that the issue is not based on any new legal principle but rather common perception, both with respect to the Knesset’s purview and the rules of private property.

The Knesset can legislate for Area C; it has in fact done so in the past, he said.

“The prima facia assumption is that [Israeli] law doesn’t apply outside Israel unless the Knesset explicitly says so. If the Knesset decides on specific laws, to apply a specific law to Judea and Samaria, it can definitely do so,” Arnon said.

He took issue with the idea that such Knesset legislation for Area C of the West Bank was tantamount to annexation.

“There are plenty of Israeli legal cases that say that application of specific norms of the Knesset and maybe even a lot of norms, do not amount to annexation,” Arnon said.

But he noted that the Knesset did not necessarily need to legislate this issue, because Israeli law and international law allows for the concept of eminent domain to be applied to the issue of settler homes on private Palestinian property.

It has not been applied in the past but there is no legal barrier against its application, with or without the Knesset legislation, Arnon said.

In any modern legal system – including Israeli and Jordanian law – there is an option to address the issue of illegal building that does not involve demolition.

This occurs in instances when the real estate investment is worth more than the property and the actions on the property were done in “good faith.”

“The government faces a dilemma: Does it want to demolish the [settler] housing, in order to give absolute defense of the right to property of the [Palestinian land] owners? Or does it want to use a legal tool that is already in place under Israeli and Jordanian law – that applies to Judea and Samaria, which is called eminent domain?” Arnon asked.

“Whatever [the government] does, whether it chooses to legalize or to remove [the homes] it will inevitably infringe someone’s rights,” he said.

“The question is, which infringement is more severe and more justifiable” and “which harm is less than the other and what is reasonable?” “Private rights are not absolute, private rights are always relative,” Arnon said.

The government has decided that “it is more just and reasonable to offer generous compensation.”

In many ways the Settlement Regulations Law improves the law of eminent domain by offering the Palestinians over 125% of the value of the property or the option of alternate plots elsewhere, he said, adding that even Palestinians who lost access to their property 20 or 30 years ago can receive compensation.

Both Arnon and Shaked explained that they did not believe the law encouraged continued illegal building on private Palestinian property.

Nor does the law attempt to evaluate or judge the situation that allowed the illegal building to happen, Arnon explained. “There is no doubt that there has been an error here otherwise we would not be facing this issue.

The law focuses on what is the most appropriate path to move forward. It is an imperfect solution for an imperfect situation.

“The law draws the line and makes a clear distinction between past and future,” he said.

It will not authorize all illegal building where the building is worth more than the land, he explained. The construction must also have been done in good faith and with government support.

Right now, he said, “We have a situation where the [Palestinian] owners do not get compensation and the people live there and do not get permits.

“There is a gap between the reality and the legal situation and the law tries to bridge that gap.”

Posted in Conflict Resolution, History, Judea and Samaria, Rule of Law, Zionism | Tagged , , , | Leave a comment

Operation Jordan Is Palestine, Can it Happen?

Israel Rising

By Mudar Zahran

July 4, 2017

“Building On History Will Help Establish A Palestinian Jordan While Ensuring Israel’s Sovereignty Over All of Its Soil”  



Operation Jordan Is Palestine (OJIP) complies with the Trump Administration’s proposed Executive Order(s) that dealing with Terrorism, Terrorist Supporters and Human Rights, as well as the UN relative to the Palestinian Authority (PA), while bringing new thoughts and options to the Middle East Peace Process. Overall, OJIP supports a two state solution based on current international agreements and actions, and will not only provide secure and safe borders for the State of Israel, but will provide Palestinian people with land, education, jobs and economic security. Additionally, it will usher in important governmental changes in Jordan, including the elimination of a Dictatorship that tortures, oppresses and restricts his own subjects while supporting terrorist groups like the Muslim Brotherhood. Additionally, it will eliminate a Dictatorship that clearly violates Western Interests by supplying America’s enemies with money, heavy equipment and military supplies. As such, OJIP will save lives and taxpayer money, eliminate terrorism and increase democracy.

HIGHLIGHTS: a few examples 

  • OJIP complies with the Administration’s proposed Executive Order that will cease support for entities that support in terrorism or violate human rights.
  • OJIP complies with the Administration’s proposed Executive Order that ends financial support for UN programs that allow full participation by the PA.
  • OJIP recognizes that Jordan is the legitimate Arab state for Palestinians and accepts Israel’s identity as a Jewish state with full sovereignty over all of its soil west to the River Jordan including the West Bank/Judea and Samaria.
  • The OJIP plan aims to provide a practical, cost-effective, and feasible solution that leads to peace based on international treaties by which both the Jewish and Palestinian Arab existence and sovereignty are secured.
  • A recent poll shows that 63% of Palestinians in the West Bank would like to move or relocate somewhere else due to the bad economic and inhumane conditions brought by the Palestinian Authority
  • OJIP recognizes that the Muslim Brotherhood is openly operating in Jordan, and is an avid business partner of the Hashemite royal family, not a competitor.
  • Once the interim government is in the palace, it shall enhance the economy through transparency and simply not stealing the country’s funds.
  • OJIP has been created on the belief that the plan’s tenants will (and can) be accomplished without any new expenditures by the US and her allies (re-categorization or allocation of existing monies, combined with a phase out schedule is all that is needed).
  • The US has provided more than $20 billion on economic and military aid to the Jordanian Monarchy since 2000, as well as several billions to the Palestinian Authority. None of this money has brought peace any closer to reality, let alone enhanced the livelihoods of Jordanians and Palestinians. [ ]
  • Economically, the OJIP plan will create jobs, expand the economy, and ensure that Foreign Aid money is spent properly, saving taxpayers money.
  • This plan will help restore the Arab Palestinians right to Jordan, which has been ruled by an outsider family of 88 people from Saudi, the Hashemite’s.
  • OJIP protects American political, military and business interests in Jordan, while seeking to expand (and include) any and all parties’ that Jordan’s allies see fit to use in military, intelligence, and counter-terrorism cooperation operations.
  • OJIP does not change Jordan’s governmental structure(s). Rather, OJIP removes the royal figureheads while keeping the government and military bodies intact. This avoids any form of Arab Spring drama from happening.



Main Document


OVERVIEW: Operation Jordan Is Palestine (OJIP): A Pathway to a Lasting Peace in the Middle East

Historically, achieving peace in the Middle East has been difficult and elusive and has negatively affected all interested parties in the region socially, politically, and economically.  Needless-to-say, all previous attempts to establish peace between the Palestinian Arabs and the Jews have failed costing the US and her allies huge amounts of funds as well as lives wasted on both the Palestinian and Israeli sides.

The OJIP seeks the implementation of the original historical agreements, which recognize 78% of British Mandate of Palestine as an Arab State, which is today’s Jordan and 22% of as a Jewish state, which is Israel, including all of the West Bank. []  And it does this through reforming Jordan and providing it with a leadership that will follow and comply with international law while creating a humane state with zero-Islamization.  As a result, OJIP is not seeking a regime change in Jordan, but simply an evacuation of the palace occupants, replacing the 88-member Hashemite family with a new leadership, while keeping the Jordanian regime, government structure, army, and all public bodies intact. This will re-establish Jordan as a reformed country and an economically and politically attractive homeland to Palestinians all over the world, including those in Israel (and the West Bank) and thus secures Israel’s sovereignty over all soil West to the River Jordan, including the West Bank.

The OJIP plan aims to provide a practical, cost-effective, and feasible solution that leads to peace based on international treaties by which both the Jewish and Palestinian Arab existence and sovereignty are secured. To accomplish this, the OJIP builds on the historical fact that both today’s Israel and Jordan are parts of the original British Mandate for Palestine. British Colonial Powers designated these lands as the future Jewish homeland in the 1917 Belfour Declaration. They were later reauthorized by the Faisal-Weizmann agreement, a covenant by which Arabs agreed to as the full “Judaization” of the land West to the River Jordan and the Land East to the river Jordan to become a homeland for the Arabs.

Therefore, OJIP recognizes that Jordan is the legitimate Arab state for Palestinians and accepts Israel’s identity as a Jewish state with full sovereignty over all of its soil west to the River Jordan including the West Bank/Judea and Samaria.  This plan also recognizes that most of today’s Jordanian population identifies as Palestinians. In fact, based on a US Embassy-Amman cable, Palestinians make more than 80% of Jordan’s population and all of those hold Jordanian passports. Additionally, Palestinians in the West Bank all hold Jordanian passports including all the Palestinian Authority’s leaders.  The Jordanian Citizenship Act, Article No.2, identities “all non-Jewish Palestinians” as natural-born Jordanians.  As a result, the majority of Palestinians in the West Bank travel with a Jordanian passport not a Palestinian one.  Taking this one-step further, thousands of Palestinian refugees in Syria hold Jordanian passports but are systematically denied ‘the right of return” to Jordan by King Abdallah, a matter that has brought international criticism on the King. [] In addition, all Palestinian refugees in Lebanon could simply claim Jordanian citizenship by the Jordanian law itself; Article No.2, nonetheless, Jordan’s monarchy will not allow that.

Supporting this, a recent poll shows that 63% of Palestinians in the West Bank would like to move out or relocate somewhere else due to the bad economic and inhumane conditions brought by the Palestinian Authority. []  Despite having Jordanian passports, King Abdallah II, restricts their entry to Jordan and harasses them upon even limited trips to their homeland, often forcing them to spend a day being interrogated by the Jordanian police.

As of today, Jordan’s Palestinians remain the majority in the country, with US Embassy-Amman cable confirming over 80% of 6.4 million Jordanian citizens. There are about 650,000 Syrian refugees registered in Jordan [] and less than 200,000 Iraqis* (all have to register with UN or risk being deported upon any contact with Jordan’s authority, therefore the figures are accurate) despite the regime’s exaggerations of “millions of refugees already in the country”. In addition, those refugees have not shifted demographics against Palestinians, and cannot make any political difference because they are considered non-citizens who cannot vote. [*Jordan’s government “estimates that there are 500,000 Iraqi refugees in Jordan. An “unclassified” US Embassy Amman cable, which Jordan’s Opposition leader had worked on, in 2008, shows the actual figure to be less than 165,000 and many have returned home to Jordan then, UNHCR shows only 60,000 Iraqi refugees registered with it in Jordan, which confirms Jordan’s government is trying to exaggerate the actual number, most likely to get more aid].

Jordan’s royal family contains less than 100 individuals (88 to be exact), and for some unknown reason, they spend most of their time outside of the country. King Abdallah II, unlike his father, does not have much control or influence over Jordan’s army of intelligence. Those are under the direct, yet unpublicized, control of the CIA, The US Defense Intelligence Agency, the US Central Command, and the US Department of Defense. On top of that, the US subsidizes Jordan’s army to the tune of over $400 million a year. Additionally, the USA has just finished building “Jordan’s Great Wall”, a wall that runs along the country’s borders with Syria, Iraq, and Israel, who has almost finished a one-billion Dollar wall along the western Jordanian border.  With the king’s constant absence from Jordan, it has become fact that the royal family has nothing to do with Jordan’s security and the structure of the Jordanian state itself; in fact, their interests are focused on collecting taxes as absentee property owners. On the other hand, they are the reason Palestinians are still being called refugees, and the reason the Palestinians still don’t have a state of their own. Simply put, the Hashemite’s officially and openly call all 5.9 million Palestinians in Jordan as refugees “who must return to Palestine someday”.

On the other hand, Jordan’s Palestinians are not interested in “the right of return to Palestine”, as a US Embassy-Amman cable, titled “the Grand Bargain” explains they are interested in having civil rights in Jordan over return to Palestine. []

Further, support for Jordan’s royal family has vanished, the East Bankers or what some call as “Bedouins” have led the protests the king since 2011. The international media have documented this numerous times. “East Bankers” despise the Hashemite regime, and this conflict has escalated into countless events of violence and unrest. All major “Bedouin” cities have rebelled against the regime at least once since 2011, and the king has failed to either bring peace or any form of satisfaction for those. Therefore, the “Bedouins” will not defend or stand by the royal Hashemite family if they leave the country.

At this point, we would like to make it clear that the OJIP Plan is not calling for “a regime change” in Jordan. That is because the Jordanian Opposition Coalition and their supporters believe that the Hashemite royal family is not the true regime and head of state for Jordan, unlike Libya and Syria. Rather, to millions, the ruling family in Jordan are viewed more as occupants of the palace and tax collectors who mistreat their subjects, while the important agencies – security and intelligence systems – run independently and effectively under the supervision of US.  This is very similar to what is going on in Egypt. When Mubarak was in power, he was a very strong president. Yet the security and military systems that were in place were never compromised when Mubarak left, nor could Morsi change those. And even when Morsi was toppled, the security and military bodies kept the country intact and the borders with Israel safe, simply because those are too close to US Intelligence and military, and so are Jordan’s security agency.

This plan sees the necessity to simply let Jordan’s royal family evacuate the palace and move somewhere else, but rather suggest that they “not return to Jordan” from one of their ‘vacations’ or almost-fulltime stays in the West.  The Jordanian “state” and “agencies” are to remain untouched and intact, only the Palace will be evacuated and new occupants shall be installed through an interim government ushered in by Jordan’s army, which falls under the full control of the US.

Additionally, despite $1.6 billion given to Jordan’s king by the US alone, very little seem to filter down to Jordanians and as for Syrian refugees; the king’s government does not give any form of handouts, welfare, or education for the Syrian refugees. In addition, despite the heaviest taxation of Jordanians in modern times, there are no free services of any kind provided, except of course for the most basic – education. This has not stopped the king and his family from raising prices and taxes on consumer goods to fund the king’s pet projects, like the maintenance of his fleet of private jets that are used by his family for fun and travel. This has led to a stalled economy with a debt ratio of over 90% to GDP and the king for some reason, demanding more financial help from the West that goes into his Swiss accounts and leaves millions starving, homeless, unemployed, and uneducated.

At the same time, the royal family has been systematically playing both ends against the middle. On one hand, they openly tell the west that they are working hard to fight terrorism; yet on the other hand, countless media reports have documented the Royal Family’s theft of US and British weapons, as well as heavy equipment. Additionally, the media has document the sale of these items to ISIS, and other rouge elements in addition to being one of the largest oil buyers of ISIS oil as confirmed by global media.  [], [].

What makes the situation intolerable is that they are using profits from the transactions to promote blaming everything on Israel/Jews, and thus are promoting anti-Semitic, anti-Israel, anti-American and pro-Jihadi incitement through their Muslim Brotherhood partners as well as the king’s state media. []  At this point, it is worth noting that the terrorist group Hamas, which has killed many Israelis and Americans falls under the direct administration of the Muslim Brotherhood of Jordan, in fact, Hamas is officially Jordan’s MB’s “Palestine Chapter”. The Muslim Brotherhood in Jordan is a part of the regime, a fact that is fully-detailed in this plan. []. That makes the royal family of Jordan not America’s allies.

Finally, this plan recognizes that the Muslim Brotherhood is openly operating in Jordan, and is an avid business partner of the Hashemite royal family, not a competitor. In fact, historically, the MB has supported the Hashemite regime through the so-called Arab Spring, especially during the largest revolution in Jordan’s history in 2012. This revolution was launched by Jordan’s seculars, []  particularly the JOC. Nonetheless, the MB stood against it and publicly announced: “We won’t allow the king to fall”.[]  And to this day, MB supports the jailing and torture of seculars by the king’s government. On top of that, the king has allowed the MB to take over the Jordanian parliament through proven-rigged elections. As a registered charitable organization in Jordan, the MB operates their own TV station in Jordan (which calls for killing Jews and Americans), have the nation’s fourth largest licensed daily newspaper that promotes hatred, and has announced many times over the years that “we are against a regime change” and that “the king is the man for us”.  In fact, the king’s own minister of political reform, Bassam Hadaddeen, announced, “The Muslim Brotherhood is a part of the regime”. For the record, most of MB’s Board of Directors are Bedouin East Bankers, not Palestinians, while Palestinians in Jordan, despite their avid hatred for Israel, hate the MB more for its alliance with the king.

This plan seeks to execute a feasible two state solution where Jordan is the natural homeland for all Palestinians, and Israel becomes sovereign over all soil west to the River Jordan.  This could only happen if the corrupt, terror-supporting and double-speaking Hashemite royal family leaves Jordan. This could happen anytime, Jordanians often revolt against the regime and then the king’s police force quiets them down, simply because the much stronger army won’t announce support for the revolutions, and American media ignores the unrest in Jordan. This plan sees a peaceful “evacuation” of the palace could softly happen if the US influences the Jordanian army and security agency to stand with the revolution the next time it breaks out.  The security agencies and army are already securing the country without any influence from the king who is mostly abroad, and nothing would happen if he simply announces he will not return.  Once that happens an interim government of pro-peace with Israel seculars could be ushered in, as was the case with every single government in the Middle East that has had a revolution in the last 70 years. Only that the US in most cases has failed to use its influences to secure that the right people are installed in interim governments.

Once the interim government is in the palace, it shall enhance the economy through transparency and simply not stealing the country’s funds. Therefore, the economy shall thrive and the US would not have to spend a cent more than it already does in Jordan. With a thriving economy, Jordan’s interim government will simply enact the Jordanian laws allowing Palestinians in the West Bank to relocate to Jordan, specially that 63% of them already which to move somewhere else. Those shall have an interest in living and working in an economically thriving Jordan. Work opportunities as well as a rewarding benefits/welfare system will be made available to those by the new interim government. All Palestinians refugees around the world would be welcomed to return to Jordan upon mere inaction of the Jordanian citizenship act, which already recognizes all Palestinians as citizens of Jordan.

The interim government will also offer job opportunities and economic incentives to Jordanian East bankers AKA “Bedouins” and West Bankers/Palestinians as well to secure acceptance and content from both.

The low-to-mid-level public servants of the Palestinian Authority will be recruited to relocate to Jordan and work with the interim government with better salaries. The fact that President Trump could stop PA’s funding will make it go bankrupt and may not be able to pay salaries to its public servants. Those will relocate to Jordan, this will sustain the new Jordan’s position as Palestine and bankrupt the Palestinian Authority of its human capital and expedite its demise.

After Jordan’s economy begins thriving, the interim government will issue a counterterrorism act banning all Islamists and affiliates of radical Islamist organizations from running for any office. Sisi of Egypt did the same. This wills secure the Muslim brotherhood have zero chance in winning any parliamentary seats or running for office.

Parliamentary elections will be held, followed by presidential elections. The interim president is the most likely to win as he or she will have access to the state media and organizations to secure his victory. In addition, Jordanians, will vote for improvement of their economic condition and the interim president could bring that easily if he or she does not steal like the king does.


Chaos is already expected in the Palestinian Authority territories because of in-house fighting in the PLO. If President Trump and the UK stop funding the PA, it will collapse. Israel could begin taking over PA areas to secure them from unrest and terror acts, eventually taking over the entire West Bank. This will happen while the new Jordan is thriving and welcoming Palestinians from the West Bank with open arms and offering them jobs and help.  After the PA officially ends and the New Jordan’s position is empowered, Israel could announce full official annexation of the West Bank.

Per Jordan’s citizenship act, Israeli Arabs, who mostly identify as “Palestinians with Israeli passports”, are also Jordanian citizens eligible for citizenship. The new Jordan will welcome them and recruit them for jobs and the thriving economic opportunities that would become in the country once the royal family leaves and the money they steal is directed towards the economy. While Israel honors and values its Arab citizens, this plan intends to defuse the demographic problems straining peace by absorbing as many Arabs in Israel as it could.

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