Israel and International Law

http://www.commentarymagazine.com/article/israel-and-international-law/

To the Editor:

We live in a world in which ignorance of history is endemic. Too few are aware that under international law Jewish rights to the state of Israel, including Judea and Samaria, stem from the San Remo Conference of April 1920. I therefore thoroughly enjoyed Eugene Kontorovich’s article in the June issue [“Crimea, International Law, and the West Bank”], which touched on the legal doctrine of uti possidetis iuris.

I was, however, surprised by this statement: “None of this undercuts the common arguments for the creation of a Palestinian state. Those arguments are rooted in diplomatic and demographic considerations.” A professor of international law must surely concede that the law is the law regardless of any other consideration.

While I acknowledge that anti-Semites masquerading as anti-Zionists will disregard international law in their quest to destroy the Jewish State, surely from a legal standpoint their arguments cannot usurp justifiable claims under international law.

With regard to diplomatic considerations, the abandonment of southern Lebanon as well as the Gaza Strip to Hezbollah and Hamas respectively did not yield the accolades from diplomats anticipated by the advocates of that policy. Instead, Israel strengthened the hands of the terrorist entities dedicated to her destruction—and the diplomatic community continues to demand further Israeli concessions.

As for the demographic issue, the multiplicity of existing arguments was not presented in this article. It can be stated, however, that volumes have been written advocating numerous solutions. They do not need to be repeated at this time. We should nonetheless recognize that the abandonment of Judea and Samaria could lead to increased immigration into those areas from the Arab diaspora and thus provide an even greater threat to the exposed amputated land of Israel and its populace. The increased danger to Israel may lead to increased emigration, decreased aliyah, and diminished foreign capital investment.

As an advocate for historical accuracy, I am also compelled to correct the one historical error in an otherwise excellent article. The illegal Jordanian occupation of Judea and Samaria was recognized by Pakistan and according to some sources Iraq, in addition to Britain and Jordan.

Richard H. Rolnick
Houston, Texas

To the Editor:

Eugene Kontorovich brings a badly needed and detailed understanding of the laws of national boundaries and the principles behind them. His analogy with Crimea is brilliant.

One point was unclear. The Palestine Mandate of 1922 did not actually create the country of Transjordan; it paved the way. Britain arbitrarily revised the draft Mandate to bar organized Jewish development across the Jordan River. The League of Nations did not like this, but Britain, the major power of the day, got its way. Britain declared the Transjordanian province an emirate, but Transjordan remained within the Palestine Mandate until it gained independence in 1946.

Richard H. Shulman
New York City

To the Editor:

Eugene Kontorovich’s article on international law is fascinating. It does, however, leave some big questions in my mind.

Why didn’t Israel declare independence in 1922, or at least within a few years? Why did the British hang around so long—that is, what had they hoped to accomplish before giving up and asking the UN General Assembly for a recommendation in November 1947? And why didn’t the international community commit itself to protecting all of Jerusalem as an international zone under all circumstances?

Dian Kjaergaard
Korsor, Denmark

Eugene Kontorovich writes:

I am grateful to the letter writers for raising several interesting points. Richard H. Shulman and Dian Kjaergaard raise some questions about how the League of Nations Mandate for Palestine worked. As the Mandate established the borders of Palestine, and its successor state Israel, the topic deserves some attention. The mandates created by the League of Nations was a kind of trusteeship system, where the Mandatory power would oversee what we would call “nation-building” in the provisional state “until such time as they are able to stand alone,” in the words of the League of Nations Charter. Britain accepted this obligation, and administered Palestine until 1948, when it packed its bags and left. The Jewish authorities did not declare independence before then because independence, both as a legal and practical matter, requires just that—control over the relevant territory. While (today’s) Palestinians have been indulged by the international community in repeated declarations of independence in territory that according to them they do not control, such proclamations typically have little significance. The Yishuv waited to declare independence until the first moment when they would exercise it.

Article 25 of the League of Nations Mandate provides for the non-application of its provisions in the area east of the Jordan River, and the establishment of a separate administration there. Thus the Mandate itself is the basis for the borders of what would become Transjordan. At the same time, the express provision regarding the partition of Palestine, and the non-application of the “Jewish national home” to Transjordan, strongly implies that no other such partition could be allowed.

Richard H. Rolnick says he is surprised by my assertion that “none of [the legal argument] undercuts the common arguments for the creation of a Palestinian state.” By this I simply mean that Israel’s legal entitlement to the land between the river and the sea does not, in itself, mean that Israel should not agree to a deal in which it would trade its territory for some perceived diplomatic benefit. Nor does it mean that it should—they are separate questions.

In considering the policy questions, Mr. Rolnick makes an important move absent from much high-level analysis of “Middle East peace process.” Such discussions typically examine the costs and benefits of the status quo in a dynamic model, taking into account things changing over time, such as a worsening demographic situation. On the other hand, they consider the proposed alternative—a withdrawal from Judea and Samaria accompanied by an expulsion of Jews from those areas—in a static model, where once the settlers are evicted, history stops, and Israel basks in peace and international adulation. Of course, history will not stop, and the withdrawal itself can have negative economic and demographic consequences, as mortars send every Israeli with a visa hurrying to the airport before it too is closed.