THE LEGALITY OF ISRAELI SOVEREIGNTY OVER JUDEA AND SAMARIA

ACCORDING TO INTERNATIONAL LAW
Karen Stahl-Don, LLM, MA

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I. INTRODUCTION AND OVERVIEW
International law supports Israeli sovereignty in Judea and Samaria. The most logical reading of the documents through which international law has traditionally
been construed debunks the claim that Israel is an illegal occupier. These legal historical documents speak the truth to all who choose to read them.
It is common to analyze the issue of sovereignty beginning either in 1947 with UN General Assembly Resolution 181 “partition plan”, or in 1967 with the Six Day
War. Either starting point works to Israel’s great detriment: omitting the World War I era obscures the binding international commitment that established the modern foundations of Israel’s sovereignty in Judea and Samaria. Such omission will inevitably improperly apply international law and lead to inaccurate conclusions. Moreover, such a narrative perpetuates the misconception that Israel was created in response to the Holocaust. In fact, the Balfour Declaration and
relevant documents supporting Jewish return to Israel preceded the Holocaust by almost three decades.

This article presents the following points of law and history:

1. In 1917, the Balfour Declaration initiated international support of the Jewish people’s reconstituting their national home in Palestine.
2. At the end of World War I, the Allies controlled the former Ottoman territories. Some Allied powers wanted to annex that land. Others wanted
   to grant self-determination. The Mandate system was a novel compromise. The League of Nations Covenant, creating the Mandate system, forms the
   preamble of the Peace Treaty of Versailles and the other WWI peace treaties. Article 22 defined the Mandate system as a “principle of
   guardianship over certain undeveloped peoples.” Nations would act as guardians to these less advanced peoples temporarily until they could adapt to the “strenuous conditions of the modern world” and stand on their own.

3. The Balfour Declaration was incorporated into the British Mandate for Palestine. The International Court of Justice has recognized the
   international Mandate as an international agreement with the status of a treaty.
4. The Principal Allied Powers explicitly defined the realization of the Balfour Declaration as the purpose of the Palestine Mandate. At the San
   Remo Conference of 1920, representatives of the four Allied powers of World War I—Britain, France, Italy, and Japan—distributed the Mandate
   for Palestine to Great Britain, stating that Britain would be responsible for putting the Balfour Declaration into effect. The international community
   committed to creating a Jewish State in the entire territory designated in the Palestine Mandate, which included Judea and Samaria. Article 6 of the
   Mandate explicitly encouraged Jewish settlement on this land.
5. The Mandate system applied Arab self-determination throughout the Middle East with Palestine as the only exception. Moreover, many omit
   that the Mandate originally included the entire area of Jordan, which was effectively severed from the Jewish area in 1922. Thus, the territory has already been divided once to allow for even greater Arab self-determination. This historic fact, often ignored, clarifies to an even greater extent that the final version of the Mandate designated all of the remaining territories west of the Jordan River as the Jewish National Home – including Judea and Samaria.
6. The Mandate, legally defined as an offspring of the law of Trusts, was always intended to be temporary and to terminate when its mission was accomplished. International recognition of Israel as an independent state constituted formal acknowledgement that the purpose of the Mandate was fulfilled. This international recognition triggered the termination of the Palestine Mandate.
7. Thus, in 1948, the Mandate terminated in accordance with the terms and borders that had been set forth within and remained unchanged. When that
   happened, the Jewish people acquired sovereignty over all of Israel—including Judea and Samaria. Such border designation is consistent with
   uti possidetis juris, a concept that the International Court of Justice has applied when recognizing historically designated administrative
   boundaries.
8. Israel subsequently ended illegal Jordanian occupation during the 1967 war. Jordan was never the legitimate sovereign as would have been
   required to trump Israeli sovereignty. No country has a more legitimate claim to sovereignty over Judea and Samaria than Israel. These facts
   establish the inapplicability of de jure (obligatory) application of the Hague and Geneva Conventions.

II. To date, no binding international agreement or event has altered the inclusion of Judea and Samaria within the borders of the Mandate, and thus within the
borders of Israel. No valid binding agreement or negotiation (including the “partition plan” UN Resolution 181 of 1947, Resolution 242, the Oslo Accords,
the 2003 “Road Map for Peace”) has altered the borders of Judea and Samaria set in the Mandate. The Israeli government has not altered or relinquished the
sovereignty acquired upon termination of the Mandate.
III. WHY IT IS IMPORTANT TO UNDERSTAND THAT THE MANDATE WAS A TRUST

The international mandate is analogous to a trust for four reasons:

1. First, the language of Article 22 of the League of Nations Covenant which created the Mandate system, describes the Mandate as a trust (a “sacred trust
   of civilization”).
2. Second, Mandates were never considered to be a possession of the Mandatory trustee. The trustee’s authority was limited by dictates of the Mandate.
3. Third, similar to the understanding that the guardianship of a minor will be temporary and will terminate when the infant reaches the age of
   majority, Mandates were created to last only until the beneficiaries (the nation and its people) would develop sufficient ability to survive in the
   modern world.
4. Fourth, jurists consider sovereignty of the Mandated territory to have been the res (property) held in trust. This sovereignty was suspended, or
   held in abeyance, until the beneficiaries demonstrated the ability to “stand on their own.” At that point, the Mandate was designed to
   terminate, much like the trust of a minor terminates upon the minor reaching the age of majority. Then, sovereignty, which had been
   suspended or held in trust, would vest in the newly independent state.
5. THE LEGAL INVALIDITY OF RESOLUTION 181 (“THE PARTITION PLAN”) The League of Nations ceased to exist as a legal entity on April 20, 1946. The
   International Court of Justice has ruled that the Mandates survived and did not terminate upon the League’s demise. The Palestine Mandate had created an
   international status, “valid in rem,” (a right that is valid ‘against all of the world’) designating the borders of the Mandate territory as the national home of the Jewish people, while guaranteeing the rights of the non-Jewish population specifically as a protected minority within the Jewish state. This status and these rights survived the demise of the League of Nations. On November 29, 1947, the UN General Assembly passed Resolution 181, which proposed terminating the Mandate and partitioning Palestine into two states. The Jews accepted this plan and the Arabs did not. As a result, Resolution 181 was never a valid partition plan. First, Articles 10 and 14 of the United Nations Charter clearly indicate that the General Assembly can only make non-binding recommendations. Second, the resolution specified a “Plan of Partition With Economic Union”(our emphasis) – with partition being only one aspect of the elaborate resolution, premised upon economic cooperation and peaceful co-existence. Third, the Jewish acceptance of Resolution 181 in 1947 was an agreement of its time, one that assumed Arab cooperation with the entire Partition Plan. Finally, although the Resolution requested the Security Council to execute the 181 plan, the Security Council never did so. Thus, with no agreement and no implementation, Resolution 181 never took root and thus, could not affect the borders set forth in the Mandate.
6. V. THE INAPPLICABILITY OF THE HAGUE AND GENEVA CONVENTIONS On May 15, 1948, Israel declared independence – and five Arab armies immediately
7. invaded. Jordan seized control of Judea and Samaria. The fighting ended following a series of Armistice agreements, each containing explicit signed provisions that there be no international ramifications or political conclusions adduced from these lines. These ceasefire lines became known as “the Green Line.” (These armistice lines, drawn in green ink, continue to carry great impact, despite the lack of any rational or legal basis whatsoever for such prominence or status as a political border.) Jordan proceeded to annex Judea and Samaria, the legality of which was recognized only by Britain and Pakistan. Through the defensive 1967 war, Jordanian rule was terminated in Judea and Samaria. For multiple reasons, including the hopeful -and what today appears naïve – anticipation of an imminent peace agreement—Israel refrained from exercising legal sovereignty over Judea and Samaria, choosing instead to de facto (“for practical purposes”) apply the “humanitarian provisions” of the international conventions designed for “belligerent occupation of foreign territory”: the 1907 Hague Regulations and the 1949 Fourth Geneva Convention. Moreover, per Article 43 of the Hague Regulations, Israel chose to leave in place most of the (primarily Ottoman and Jordanian) civil law in effect at the time.
8. THE MANDATE – A BASIS FOR SOVEREIGNTY UNDER INTERNATIONAL LAW The British Mandate for Palestine, upon its termination over sixty years ago, vested sovereignty in the Jewish state. This document established the modern-day legal status of Judea and Samaria, and remains decisive today. The purpose of the Mandate has been fully executed and realized. Israel is a Jewish homeland with a Jewish majority, civil and religious rights of the non-Jewish minority are protected, and access to the holy places in Jerusalem is guaranteed to all religions. This international agreement, constituting a binding international treaty “in fact and in law,” designated Mandatory Palestine as the intended national home of the Jewish people, and recognized the territory of “Palestine” as including the area of Judea and Samaria. Despite the tremendous energy expended to obscure this historic and legal truth, no valid treaty, document, or resolution has altered this reality. Thus, despite the herculean efforts to obfuscate the Jewish connection and legal rights, epitomized by recent international attempts to strip even the most obvious of Jewish sites of their clearly documented connection, we dare not allow the world to be dissuaded or distracted by such blatant use of smoke and mirrors. Most importantly, we ourselves must be aware, and our discussions premised upon the knowledge, that Israel retains the right to legal sovereignty over Judea and Samaria, and that a Jewish presence and Jewish communities in the area are legal according to international law.