Preserving a legal inheritance: settlement rights in the "Occupied Palestinian Territories"
The fuller version of the article in the September 2009 Journal in response to Fraser Ritchie’s article of June 2009
2. The land at Jayyous and its surroundings
3. Legal issues
a. Applying international law in the OPT
b. Substantive land law in the OPT
c. The Fence and the Green Line.
(i) Legal significance of the Green Line
(ii) Legal, political and security consequences
d. The legality of the Fence and restrictions on entry into the Seam Zone
e. Israeli civilian right of presence and settlement in the West Bank
(i) League of Nations Covenant 1920
(ii) San Remo Resolutions 1920
(iii) Treaty of Sèvres, 1920
(iv) Palestine Mandate, 1922
(v) UN Charter article 80
(vi) UN General Assembly Resolution 181
(vii) Israeli-Jordanian Armistice Agreement, April 1949
Fraser Ritchie’s article “Unequal before the law” (Journal, June 2009, 22; for fuller version click here) purports to describe an adverse humanitarian situation prevailing in and around the Arab village of Jayyous, located in “Israeli occupied Palestinian Territory” on the West Bank (OPT) and situated close to the Jewish settlement of Zufin. He raises three separate legal issues from which he draws certain conclusions. However, when subjected to rigorous examination, these conclusions prove to be unsubstantiated or misinterpreted, resulting from errors and omissions of fact and law.
In setting the background to his investigations, Mr Ritchie states of his visit to Jayyous: “I was surprised by the degree of disregard for international law, humanitarian law, human rights and legal rights. Having experienced practice in Scotland in conveyancing and court, it seemed of interest (i) how land could be 'confiscated' by a state, and (ii) how a state could so ignore due process”.
Without giving his readers a clear description of the legal and factual context, Mr Ritchie concludes that:
(a) Israel manipulates and exploits the land legislation applicable in the OPT so as to bring under Israeli state control large tracts of undeveloped or uncultivated land. This operates to the detriment of the Palestinians, who, in his opinion, are entitled to have free and untrammelled access to such lands and to develop them;
(b) Once such land is repossessed by the state, it is used to (i) establish Israeli settlements; and (ii) accommodate the terrorist security barrier (the "Fence").
The reality is that while the injury and inconvenience caused to the Palestinians by Israel is to be regretted, their situation is much less severe than that which Mr Ritchie portrays.
Mr Ritchie's article omits to make even a single reference to the role and earlier judgments of the Israeli Supreme Court. Since 1967, it has opened its doors to receive petitions for redress submitted by Palestinians alleging personal injury and harm or damage to their property within the OPT, caused by arbitrary or illegal acts purportedly committed by the Israel Defence Forces ("IDF") or by other Israeli nationals acting in their official capacity. Many of these claims have been resolved in the Palestinians’ favour.
Further, in discussing the Fence, its construction, location and gates, and the damage and inconvenience caused to Palestinians by its presence, Mr Ritchie ignores
- the context in which Israel gained occupation of the West Bank;
- the reasons for the occupation continuing for so long; and
- the extent of the provocation which gave rise to the construction of the Fence in the first place.
2. The land at Jayyous and its surroundings
Mr Ritchie implies that land “taken from Jayyous” for the establishment of the nearby Jewish settlement of Zufin was improperly leased from the Israeli Custodian of Enemy Property. In fact, a very substantial parcel was acquired directly from its Arab owner in an arm’s length transaction for good consideration in accordance with the very registration process, discussed below, which Mr Ritchie denounces.
Amongst other facts of which Mr Ritchie is apparently unaware is the climate of intra-Palestinian duress and intimidation which befogs West Bank politics. Sadly, the vendor paid for the “crime” of selling land to a Jew. He was assassinated by fellow Palestinians.
He also omits to mention that in 2005, Jayyous petitioned Israel’s Supreme Court (HCJ 10905/05) for judicial review of the route of the Fence, 96% of which, overall is comprised of electronically wired fence construction and not a wall as is commonly described. Although the final decision is still pending, the Israel Defence Forces (“IDF”) have already conceded that the “warning distance” between the Fence and the nearest Jewish settlements could be reduced, thus returning some 500 acres of privately owned and 90 acres of “state” land to the Palestinian side.
The article states: “The Israeli separation barrier has isolated 78% on the west side within a distance of up to 6.5km from the 1949 internationally recognised armistice line known as the Green Line”.
The reality is different:
- In its present location, the percentage of land isolated from the village is approximately 60%. If the court accepts the IDF concession, this will fall to about 40%;
- The extent of the Fence’s penetration from the Green Line in the Jayyous area ranges from hundreds of metres’ distance to 3 km at most and not 6.5 km.
Mr Ritchie further states: “[i] In Jayyous there is land that still belongs to Jayyous farmers but which they can only access through a gate in the barrier, opened and shut by soldiers at specified times. [ii] The farmer must show a permit. [iii] Only 18% of people with land have permits. [iv] If the land is not farmed, due to absence of permit for whatever reason, it will be taken as state land under [Israel’s] interpretation of the Ottoman law.”
Three of these statements – i, iii and iv – are inaccurate both in fact and law.
(i) There are three gates and not just one. Two are open for three periods each day; the third remains open throughout daylight hours.
(ii) The Israeli Civil Administration issues an entry permit to all inhabitants possessing a sufficient interest in land within the restricted area. The probability is that only 18% of the population of Jayyous has land such as to justify a genuine need to gain entry.
(iii) As will be demonstrated immediately below, under Israel’s application of the Ottoman law, rather than in its interpretation, land classed as Miri (see below ) is not automatically "taken as state land" if it remains uncultivated.
Further, international law recognises the right of an occupying power to restrict freedom of movement and declare certain areas restricted, where necessary for orderly government and for the security of the occupying power.
3. Legal issues
Israel’s presence on the West Bank dates from the 1967 Six Day War. Taking the strategic pre-emptive defensive action consistent with UN Charter article 51, Israel repelled a planned armed attack by the united forces of Egypt, Syria and Jordan. Neither conventional nor customary international law requires Israel to withdraw from territory captured in a self-defence war until she and her opponents conclude a peace treaty. Although Israel’s relations with the Palestinians are temporarily governed to a considerable extent by the Agreement on Interim Self Government, 1995 ("Oslo II"), no final peace treaty has been concluded in respect of the OPT.
a. Applying international law in the OPT
In governing the OPT since 1967, Israel complies with international law. This demands that the occupying power:
- continue to apply “the laws in force within the territory immediately prior to the occupation” (article 43, Hague Regulations (“Hague”), and article 6(2) of the Fourth Geneva Convention (“Geneva IV”)); and
- “safeguard the capital of [state] properties, and administer them in accordance with the rules of usufruct” (Hague, article 55).
The British Mandatory Government introduced the statutory process of taking possession of immovable Ottoman state property by military order and transferring its management to the Custodian of Absentee and Enemy Property (the “Custodian”) in 1919. Jordan did likewise in 1948. The Israeli military commander, following the same procedure in 1967, imposed a duty on the Custodian to manage OPT state lands in accordance with the pre-existing land law.
In respect of private property, Israel adheres to Hague, article 52 and Geneva IV, article 53, which prohibit an occupying power from destroying or confiscating private property, except where such destruction is rendered necessary by military operations. Where there is a military need for the use of private property, the land is not confiscated – title thereto is not forfeited – but it may be requisitioned from the owner, who is entitled to receive compensation for its occupation and use. Such is the situation where Israel has erected parts of the Fence on private land.
b. Substantive land law in the OPT
Mr Ritchie alleges that “Israel says non-registered land in the OPT is public land”. Israel makes no such claim! The reverse is the case.
Mr Ritchie fails to differentiate non-registration of title to land from an individual’s ability to (a) acquire the right to cultivate Miri-type land (see below) by adverse possession; and also (b) bear the risk of loss of such right by failing to cultivate it according to law.
The substantive land laws applying in the West Bank are based principally on the 1858 Ottoman Land Code, amended by the British Mandate and Jordanian Governments under their respective jurisdictions. They have remained essentially unaltered under Israeli rule. Taken together, these laws regulate the acquisition, utilisation, disposition and registration of all types of landholding, including state owned land.
Ottoman land law recognises six classes of landholding, expressed in terms of its location, quality and potential use. In and around Jayyous, the land falls unevenly into four of these classes, the second of which is the most prevalent, and the most relevant for Mr Ritchie in his criticism of Israeli conduct:
(i) land used for public or general use of the inhabitants of a village, denominated as Metrukeh;
(ii) land located outside an urban area capable of cultivation - classified as Miri;
(iii) stony and broken land - being neither under cultivation nor capable of it - termed Mewat; and
(iv) land which has been abandoned and uncultivated for more than three years - termed Mahul or Waste land.
The state maintains a continuing legal interest in the last three types.
In respect of Miri, the law provides that the bare title (“rakva”) to such lands vests in the state (now represented by the IDF commander), from whom an individual can acquire rights of use (“te’tsaruf”) either by express grant from the state or by 10 years’ uninterrupted adverse possession.
Land registration during the Ottoman period provided only for registration of transactions in land, which were personal in nature and no guarantee of good title. The records were used to identify potential conscripts for compulsory military service and liability to contribute to and strengthen the government tax base. For the Ottoman administration, both the identity of the occupant and the intention that vacant or uncultivated land be brought into productive use had greater importance than an exact delineation of the land being transferred and the validity of its title.
The Ottoman law, which the British mandatory authority adopted, therefore encouraged the state to recover Miri land uncultivated without reasonable justification for three consecutive years and to resell it by public auction, again subject to the obligation to occupy and cultivate it.
For the British administration, close settlement on vacant or waste land and increasing the level of efficiency in utilisation of land then under cultivation took precedence. Only in urbanising areas did land title registration begin to be introduced. Comprehensive title registration based on land “settlement” did not exist outside the built-up areas. The settlement process was both extensive and expensive. It included cadastral surveying, measurement, initial boundary setting, public notification, quasi-judicial hearing, determination of objections and finally registration.
For the legal development of land to attract investment capital, title thereto has to be secure. To stimulate such investment, Jordan introduced the First Registration of Land Law, 1965. Despite this innovation, when Israel took control in 1967 only one third of the non-urban land in the West Bank had been “settled”, a situation which retarded its development.
It is at this juncture that Mr Ritchie misinterprets the purpose and application of the law as favouring the Israeli occupying administration.
An applicant for “first registration” must first provide proof of title! In the case of Miri land, a claimant by adverse possession must demonstrate that he or his immediate ancestors both occupied and cultivated the land continuously for a 10 year period without objection. If, however, Miri land ceases to be cultivated for three years, by law such land technically becomes vacant (mahlul) or waste land and reverts to the state.
After 1967, in order to determine which lands were Government owned in a practical and evidentiary manner, the IDF military commander exercised his authority to declare apparently abandoned or uncultivated land as reverting to the state. Subsequent to making such declaration, notice thereof is served on the leaders of the relevant village and is published in the civilian co-ordination and communication centres, giving a 45 day period within which opposition and objection may be submitted. After the expiration of this period, appeals may still be submitted if a delay can be justified.
Miri land is only declared to be state land after a very thorough examination of its uncultivated condition and confirmation that it has not been worked for a period even as long as 10 years, as against the strict legal requirement of three years.
Even if the land has not undergone first registration, a claimant may still possess a right of occupation, but, after having successfully completed the process, the weight of proof in support of his right is much greater. It was by undergoing this process that the Palestinian landowner was enabled to sell his land to the Jewish development company which built the settlement of Zufin.
Despite the hearsay anecdotal evidence in the book Palestinian Walks, on which Mr Ritchie relies, vacant and uncultivated Miri land in the OPT is neither declared as “state” land nor is it allocated to private developers or individuals, before a full investigation has been conducted.
Mr Ritchie fails to disclose that Israeli policy is flexible in the exercise of state rights to reclaim Miri land.
Neither the IDF nor Custodian implement the state’s right to recover uncultivated land strictly in accordance with the law; nor is it employed automatically against the Arab cultivators. IDF policy is flexible. Until either the state or the occupier/cultivator initiates some concrete intention to develop, Palestinian occupiers are permitted to resume cultivation – even after ceasing to do so for a number of years well in excess of the three year limitation period.
Although Israel has placed the burden of proof on the cultivator to show continuous use of state land that has been or is, in good faith, about to be certified by the Custodian as unoccupied or unworked, the cultivator can still pre-empt such a state declaration by initiating a “first registration” procedure. Alternatively, he can discharge the burden of proof imposed on him relatively easily by witness testimony and the very aerial surveys, described immediately following, which Mr Ritchie condemns.
Mr Ritchie alleges that “proof of non-cultivation was by aerial photographs when there were no crops in the ground”. Factually, he is wrong!
The photographs are based on the results of a longitudinal aerial survey initiated and undertaken in 1945 by the Palestine Mandatory Administration as the foundation for a study directed towards increasing the efficient utilisation of land under its jurisdiction. During the 19 years of Jordanian occupation, its Land Administration failed to update the survey and its utilisation was allowed to lapse. Only after the Six Day War did Israel resume the survey on a regular basis for its initial purpose – and it is updated regularly. The use of photos extracted from the survey to prove or dispute occupation and cultivation was neither initiated by Israel nor undertaken for the objective that Mr Ritchie claims.
Unworked Miri land does not automatically revert to the Jewish people.
In the event any particular parcel or tract of Miri is declared as being unoccupied or unworked, Mr Ritchie states, incorrectly, that it “‘reverts’ to those whom the Israeli state regards as rightful owners, the Jewish people, wherever they may be. Legally this is not sustainable”.
This conclusion is also wrong in law. The right of utilisation of any particular parcel of Miri land that remains undeveloped will not necessarily revert to the “Jewish people”, but to the state, be it Palestinian or Israeli, which ultimately gains jurisdiction in Final Status negotiations.
c. The Fence and the Green Line
i. Legal significance of the Green Line
Mr Ritchie rejects out of hand Israel’s claim that the Fence is required to provide security for its citizens. He states: “[Israel] could have legally constructed the barrier along the Green Line, but that would have defined the Israeli boundary and excluded the citizens of Zufin from ‘protection’. There are many Israeli settlements in the West Bank and Israel has built, or made plans to build, the barrier round as many as it can.”
The Green Line however does not constitute a generally recognised international boundary or border. The line is a ceasefire line agreed between Jordan and Israel in their 1949 Armistice Agreement:
“Its basic purpose is to delineate the lines beyond which the armed forces of the respective Parties shall not move” (article IV(2)).
The Agreement specifically states in article II(2) that “no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations” (emphasis added).
Only Britain and Pakistan recognised the line as an international boundary when Jordan purported to annex the West Bank in 1950. The Six Day War rendered the question largely moot.
ii. Legal, political and security consequences
From Israel’s perspective, construction of the Fence on the Green Line would have brought about unacceptable legal, political and security consequences:
(1) Legally, construction of the Fence on the Green Line would have been interpreted internationally as a waiver by Israel of the minimal security protection accorded to it under UNSC Resolution 242, passed after the Six Day War.
(2) Politically, location of the Fence on the Green Line would have pre-empted and foreclosed any negotiations with the Palestinians on at least three of the six topics specifically reserved for the Final Status Negotiations contemplated in the 1993 Oslo Accords: settlements, security arrangements and borders.
(3) As for security, the Green Line runs very unevenly through low lying ground. Mountains and hills dominate the valleys. Therefore, to provide the secure boundaries recognised by resolution 242, Israel must control the high ground in order to dominate the area, rather than have others dominate her.
The purpose of the Fence is to deter and delay easy Palestinian terrorist infiltration into Israeli territory and its civilian population centres. The route of the Fence and the nature of its construction are dictated by topography, the absence of natural or manmade obstacles between Israel and the OPT, the warning distance between Israeli and Palestinian population centres and other security considerations.
The location of the Fence on the “Green” ceasefire line would, therefore, have defeated the very security objectives which it is designed to achieve.
The construction of the Fence is not a political statement but a temporary security measure, it being composed mainly of wire, which can be removed with relative ease should circumstances permit. In determining the route of the Fence, a balance has to be struck between Israel’s security and Palestinian humanitarian considerations, taking into account the needs of those most affected by the Fence.
As will be demonstrated below, the decisions of Israel’s Supreme Court ensure that the IDF seeks to find an appropriate balance. The route of the Fence has already been changed in a number of instances in response to Palestinian complaints.
d. The legality of the Fence and restrictions on entry into the Seam Zone
(i) Mr Ritchie’s reliance on the opinion of the International Court of Justice (on the “illegality” of the “Wall”), as having binding effect, is questionable:
- The opinion rendered was “advisory” and not dispositive;
- Without giving reasons, the opinion peremptorily declared that Israel could not avail itself of the right of self-defence under UN Charter, article 51 against a non-state actor. However, the language of the article imposes no such limitation. Indeed the inherent customary law of self defence has been legitimately relied upon, even before the creation of the nation state, against marauders, bandits, and other warlike attackers emanating from beyond the territorial boundaries claimed by a nation or people. Since 9/11, the ICJ position has become untenable.
- The opinion failed to take into account Israel’s security considerations, based on hard evidence and subject to cross-examination. The ICJ virtually concluded that Israel’s action was politically motivated. A detailed examination of the facts would have shown the contrary.
- The opinion makes no reference to the security provisions of the Israel-PLO Interim Agreement of 1995 (Oslo II).
The legality of the Fence cannot be divorced from the peril and scale of the armed attacks directed indiscriminately at Israel’s civilian population before and after its construction. After the collapse of Final Status negotiations with the PLO in 2000, the Palestinians escalated their campaign of terror both in the OPT and within Israel. By April 2004, more than 780 terrorist attacks had been perpetrated within Israel and more than 8,200 in the OPT, costing 900 Israeli citizens their lives and causing over 6,000 to be severely injured.
Such was the scale of aggression that the situation could legitimately be classified as “armed attack” short of war. In these circumstances, the laws of war and of belligerent occupation expressed in Hague and Geneva IV have again become applicable as they were in 1967:
- Hague, article 43 requires the occupying power to take all the measures in its power to restore, and ensure, as far as possible, public order and safety.
- In so doing it may requisition private property for military needs (Hague, articles 46 and 52). Such needs would include the land upon which the Fence is constructed, in return for which the owners are entitled to compensation.
- If in the process of constructing the Fence it is absolutely necessary to destroy private property, such as by the removal of olive trees, Hague, article 52 and Geneva IV, article 53 permit such action. To minimise damage to local farmers, Israel has replanted over 90,000 trees in the area of the Fence and has tried, wherever possible, to utilise public land, in accordance with Hague, article 55.
(ii) The Fence also constitutes a legitimate measure under the security provisions contained in Oslo II.
(iii) As mentioned earlier, any Israeli or Palestinian is free to petition the Israeli Supreme Court for judicial review of IDF decisions on the line of the Fence, if he alleges this to be unreasonable or unconnected with any security objective. In responding to any order nisi issued against the IDF or the Israel Government, the former will be compelled to lead evidence proving:
- a rational connection between the route of the Fence and the goal of its construction as being necessarily military in its objectives and not political;
- the route chosen being the least injurious to the petitioner without sacrificing that defence objective; and
- the damage caused to the petitioner being proportionate to the anticipated security gain.
All three subtests must be satisfied simultaneously.
Since the commencement of construction of the Fence, over 150 applications have been submitted. Approximately 50% have been withdrawn and 38 remain to be decided. On the other side of the scale, since commencement of its construction in 2003, the Fence has directly reduced the number of successful attacks and consequent fatalities on Israel’s civilian population.
e. Israeli civilian right of presence and settlement in the West Bank
The declared objective of Mr Ritchie’s Quaker sponsor and that of EAPPI, the programme organiser, is to bring about the cessation of Israeli “occupation” in the West Bank. The real issue, which both they and Mr Ritchie avoid, is not opposition to the “occupation”, but Arab-Islamic opposition to any Jewish right of presence in the West Bank.
Israeli settlements in the OPT barely account for more than 2% of the land area captured in 1967. As a result of the IDF troop withdrawal in accordance with Oslo II, Fatah and Hamas – and not Israel – currently exercise personal jurisdiction over approximately 97% of the Arab population, as they do in respect of over 65% of the West Bank territory. In the failed Final Status negotiations of 2000, Israel offered to withdraw from approximately 97% of the OPT, making up the 3% balance in a land exchange.
Apart from Jewish neighbourhoods in East Jerusalem, the relatively small proportion of land in the West Bank utilised by settlers is located mainly on stony hilltops – state owned Mewat land incapable of being cultivated or developed without a large input of investment capital.
Mr Ritchie accepts uncritically the Palestinians’ claim that Israeli settlement activity following the 1967 occupation is contrary to international law and is therefore illegal. The claim is rooted in article 49(6) of Geneva IV: ”The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The objective of paragraph (6) was to prevent a practice adopted by Germany during the Second World War of the involuntary transfer of portions of its own population to occupied territory for political and racial reasons. Legal scholars disagree with the allegation that this provision was ever intended to mean a voluntary, non-coercive movement of a civilian population. The provision therefore does not provide the solid foundation which the Palestinian position claims.
Notwithstanding article 49(6), Israel has an independent legal claim to occupy, and settle in, the West Bank Territory, which can be traced through a number of international legal instruments, the most significant of which are:
(i) League of Nations Covenant 1920 formed part of the peace treaty negotiations following the conclusion of World War I. Article 22 deployed the Roman-Dutch legal concept of “mandate”, similar to the equity concept of a trust. It was anticipated that the mandate for a territory would reflect the stage of the development of the people, its geographical situation, economic conditions and other similar circumstances.
(ii) San Remo Resolutions 1920 continued the peace negotiations in respect of the disposition of the territories formerly held under Ottoman control. Purporting to act in accordance with article 22 of the Covenant, the Principal Allied Powers concluded, inter alia:
- Syria and Mesopotamia (Iraq) should be provisionally recognised as independent states, subject to the rendering of administrative advice and assistance by a Mandatory Power until such time as they might be able to stand alone; and
- separately, Palestine was to be entrusted to a Mandatory Power, yet to be selected, that would be “responsible for putting into effect the [Balfour] declaration originally made on November  1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people”.
Both Britain and the Allied Powers were cognisant of the fact that the Zionist Jews hoped that the homeland in Palestine would ultimately develop politically as an independent Jewish state. The Arab leadership on the other hand was divided on the matter at best, and opposed to it at worst. Consequently, the language expressed in the Declaration, and included in the Resolution quoted above, continued:
“it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country” (emphasis added).
Significant by its absence is the word “political” from the rights of the communities which were not to be prejudiced by the establishment of the Jewish homeland. Furthermore, these communities were not referred to as Arab but as “non-Jewish” religious (rather than ethnic) communities. This differentiation became even more apparent in the terms of the actual Mandate.
(iii) Treaty of Sèvres, 1920 gave expression to the San Remo Resolutions in the peace agreement concluded between the Allied Powers and the Government of Turkey then in power. Inter alia, it provided for the dissolution of the former Ottoman Empire, with Turkey ceding all rights of sovereignty over North Africa and Arab Asia. (This waiver was subsequently confirmed in the Treaty of Lausanne 1923, which replaced the unratified Treaty of Sèvres.) The Allied Powers’ dissolution and the politically artificial delineation of Middle Eastern territory laid the foundations of the present conflict between Jews and Arabs and between Israel and the Palestinians.
Thus there is a clear link between the act of renunciation of Turkish sovereignty over Palestine and its transfer to Britain – under the Mandate designed for putting into effect the establishment of a Jewish homeland, as expressed in the Balfour Declaration and the San Remo Resolutions.
(iv) Palestine Mandate, 1922 reiterates in its preamble the policy declared in the Balfour Declaration and acknowledges the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home there.
Article 6 of the Mandate imposes a positive obligation on the British Mandatory “to facilitate Jewish immigration under suitable conditions and shall encourage… close settlement by Jews on the land, including State lands and waste lands not required for public purposes”.
The obligation to facilitate Jewish immigration is supported by the provisions of article 7, which impose on the Mandatory a duty to enact a nationality law, “and to include therein provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine”.
The terms “Palestinian” and “Palestine” at this period (1922) were applied solely to Jews and their ancient homeland. Yasser Arafat’s "creation" of a separate "Palestinian" people out of the South Syrians (as they were known under Ottoman rule) did not occur until 1964.
While article 6 implies that Jews were to be allowed to settle anywhere in the mandated territory, article 25 empowered the Mandatory “to withhold the application of… such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions”.
This provision enabled the Mandatory Administration to confine the establishment of the Jewish homeland to territory lying cis-Jordan, while giving Arab-Palestinians and others the right of settlement and land acquisition in trans-Jordan and excluding the Jews therefrom.
That the drafters of the Mandate contemplated the realisation of a Jewish majority in cis-Jordan is supported by the recognition of the Jewish Agency in articles 4 and 11 as an active partner with the Mandatory Government in the stimulating of Jewish immigration and development of Palestine. By contrast, the presence in the mandate instrument of language protective of Arab and other non-Jewish interests appearing in the preamble, article 6, and particularly in article 9, would have been superfluous if the drafters had envisaged an eventual Arab sovereignty over a Jewish minority.
(v) UN Charter Article 80
This article provides in part: “Nothing in this Chapter [dealing with the establishment of Trusteeships and Trustee Agreements] shall be construed in or of itself to alter in any manner the rights whatsoever of… any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”
Mandates approved by the League did not, upon the League’s dissolution, fall automatically within the new Trustee system established under the UN Charter. Until a Trustee agreement concluded in accordance with article 77 replaces it, a Mandate and the rights of the beneficiaries under it remain intact. To the best of the author’s knowledge no such agreement in relation to Palestine was ever prepared in accordance with this Chapter, nor was one even considered. While Britain may have surrendered her obligations as Mandatory-Trustee in 1948, the Mandate itself did not lapse.
The Mandate has never been formally amended or repealed – nor can it be “wound up” so long as the beneficiary and an undistributed part of the corpus of the trust continue to exist. The Jewish people, as beneficiary, now represented by the state of Israel, appropriated part of the trust corpus lying to the west of the River Jordan, following the surrender by Britain of its obligations as Mandatory trustee in 1948 after the withdrawal of British troops. The legal right of sovereignty over that unappropriated portion of the West Bank formerly held under Jordanian control remains in abeyance and the right thereto is in dispute. Until this issue is resolved, the Jewish people still have a legal right of settlement in that territory.
(vi) UN General Assembly Resolution 181, which recommended a two-state partition of the West Bank, did not change the legal situation, having no dispositive effect and having been rejected by the Arab states. (It also contemplated that each nationality would have "expatriate" communities living within the other nationality's state, with rights of residence but not of citizenship.)
(vii) Israeli-Jordanian Armistice Agreement, April 1949
The inability of the UN to enforce UNGA Resolution 181 induced five Arab armies to launch a full scale war against the nascent state of Israel on the day immediately following the British withdrawal from Palestine. In the process, Egypt occupied the Gaza strip and Jordan occupied part of the land on the West Bank designated in UNGA 181 for the Palestinian-Arab state. Although under the proposed plan of partition Jerusalem was to be internationally governed under the auspices of the United Nations, Jordan also took control of Eastern Jerusalem, from which a large Jewish population was ejected, creating a Jewish refugee crisis to which little reference is ever made. Israel nevertheless succeeded in retaining the western part of the city.
A ceasefire between the belligerents was achieved by the United Nations and given legal effect in the respective Armistice Agreements.
As mentioned in Part 3(c) above ("The Fence and the Green Line"), articles II(2) and IV(2) of the Israeli-Jordanian Armistice Agreement make it quite clear that none of the Agreement’s terms has any impact on the ultimate question of sovereignty over the disputed area, and that the Green Line was specifically excluded from having any political significance. Israel’s legal claim to settle in the West Bank remains unchanged from that which prevailed before 1948 or afterwards.
Thus, Israel is perfectly entitled, as a matter of law, to permit the voluntary settlement of her population beyond the Green Line and to take such steps as the construction of the Fence, in order to protect her population on both sides of that line. Whether it is politically wise for Israel to allow her citizens to settle in that portion of the undistributed West Bank territory whose sovereignty is still in dispute is a different question.
A command of the above facts together with the legal analysis will hopefully allow Fraser Ritchie to reassess his stringent condemnation of Israel.
Professor Gerald M Adler, LLM, JSD (Yale) qualified as a barrister in Canada (Ontario), an advocate in Israel, and a solicitor in England & Wales. He taught law at the University of Western Ontario and the Israel Institute of Technology, Haifa. Inter alia, he also served as senior assistant to the Israeli Attorney General and as the Chief Legal Advisor to the Israel Electric Corp Ltd. Now retired from active practice, Dr Adler has spent the last five years researching “Legal Aspects of the Arab-Israel Conflict Within a Historical and Political Context”, part of which can be accessed on the internet.