Ignoring History

It seems important to remember that Judea and Sumeria legally belong to Israel:

The argument that Israeli “settlements” in Judea and Samaria are conclusively illegal under international law is a political fiction. Before the Obama Administration’s adoption of the revisionist narrative, U.S. Mideast policy was not predicated on presuming the “settlements” to be illegal, but rather on making them subject to negotiations as part of an ultimate quid pro quo. From an American perspective, the final disposition of the territories was to be based more on political and logistical concerns than on historical imperative. The reason for this policy vision was the clearer understanding of prior administrations regarding the nature of Israel’s claims to the territories and the range of interpretations regarding their status under prevailing standards of international law.

In order to argue that Judea and Samaria constitute ancestral Palestinian lands and therefore that the settlements are conclusively illegal, one must ignore the provenance of the lands that came to be designated as the “West Bank.” These territories were unquestionably part of ancient Israel; they were never part of a sovereign nation called “Palestine.” Indeed, no such country ever existed. Rather, for some 600 years before the First World War these lands had constituted a province of the Ottoman Empire, prior to which they had been subsumed by successive empires and conquerors going back to the Roman conquest.

Inconsistent with any Arab claims, these territories – and indeed the area that would become the modern state of Israel – passed from the Kingdom of Judea to the Roman Empire upon the destruction of the Second Jewish Commonwealth in 70 C.E. After later quelling the Bar Kochba Rebellion in 135 C.E, the Emperor Hadrian attempted to break the Jews’ connection to their land by exiling much of the population, renaming the country Philistina after the ancient Philistines, and making it a backwater province of the empire. After the later disintegration of Rome, the land fell under the Byzantine influence of the eastern empire, followed by the Muslim conquests and then Ottoman control.

The name “Palestine” was not derived from an existing non-Jewish population, but rather from the name Philistina used by the Romans to identify the land with a people who no longer existed at the time of the Roman conquest. When the Ottomans were defeated in the First World War, their former provinces were divided into mandatory protectorates. The League of Nations designated Britain custodian of the “Palestine Mandate,” which was later divided into Israel and Transjordan.

The original “Mandate for Palestine” was unanimously approved by the League of Nations in 1922. The Mandate contemplated a sovereign Jewish state comprising the entire area west of the Jordan River with an Arab state to the west, but never envisaged the creation of a state called Palestine. The British used nearly 80% of the mandatory area to create the Hashemite Kingdom of Transjordan in the 1920s. During the 1948 War, Transjordan (later Jordan) occupied the “West Bank” and East Jerusalem, despite having no lawful or authentic claim to them, and annexed them shortly after the ceasefire. Nineteen years later, Israel liberated Judea, Samaria and East Jerusalem during the Six-Day War, which had been precipitated by the aggression of Egypt, Jordan and Syria.

Israel can claim lawful possession of these lands because she was acting defensively in 1967, when she obtained them from an enemy nation which itself had acquired them by belligerent conquest. Although Israel’s detractors labeled her an occupier under the law of “Belligerent Occupation,” the Hague Regulations of 1907, and the Fourth Geneva Conventions, these standards arguably were inapplicable because Judea, Samaria and Jerusalem did not belong to another sovereign nation when Jordan occupied them in 1948. However, a chronological analysis shows a documented Jewish presence dating back to antiquity, whereas Jordan had no past connection to these lands. Indeed, Jordan itself was an artificial construct of the British, who conveyed the majority of the Mandate area to the Hashemite kings after their displacement from Arabia by the Saudis.

Accordingly, when Jordan transferred its right to make claims to these territories to the Palestinians at the beginning of the Oslo Process, it actually possessed no lawful title to convey.

Consequently, the Palestinian Authority cannot rely on the transfer of rights from Jordan to show that it has a title claim superior to that of Israel, or even a historically cognizable claim. Moreover, it cannot claim that Israel legitimized Palestinian claims by submitting to the humanitarian dictates of the Fourth Geneva Convention. Although Israel has applied these humanitarian standards to the Arab civilian population under her control, she only did so to the extent these standards conformed to traditional humanitarian norms. At no time did she acknowledge Palestinian political sovereignty through her humanitarian actions.

Prior to 1967 – indeed before the reestablishment of Israel in 1948 – the Jews’ connection to these lands had long been recognized, as was reflected in the “Mandate for Palestine.” In fact, though these lands had been conquered, re-conquered and divided by successive imperial and colonial powers since the defeat of the Judean Kingdom by the Romans, they were never reconstituted as an independent, sovereign entity at any time after the wars with Rome. Rather, these lands were always recognized as the Jewish homeland, and were always possessed of an indigenous Jewish population. Thus, there has been a continuous Jewish presence there for more than 3,000 years – long before the arrival of Roman, Arab or Ottoman interlopers.

In recognition of the Jews’ continuous historical connection to the land, Israel’s Provisional State Council in 1948 promulgated the “Area of Jurisdiction and Powers Ordinance.” David Ben Gurion used the Ordinance to facilitate the annexation of areas that lay beyond the 1947 Partition Plan frontiers but which had always been recognized as part of historic Israel and the Jewish national homeland. Commonly known as “Ben-Gurion’s Law,” the Ordinance was to be applied to lands that were liberated by the Israel Defense Force, and to that end was made retroactive to the date of Israel’s independence on May 15, 1948.

Jewish habitation of Judea and Samaria was a fact into modern times, until Jordan conquered the territory and expelled its Jewish inhabitants during Israel’s War of Independence. Towns such as Alon Shevrut, Kfar Etzion, Rosh Tsurim, Migdal Oz, Neve Daniel, and Bat Ayin were established on ancient Jewish lands that were lawfully acquired well before modern Israel’s independence. Accordingly, they were never considered to be settlements in any colonial sense. In 1948, Transjordan/Jordan conquered the land, expelled the Jews, renamed the greater area the “West Bank,” and annexed it in derogation of international law. Consequently, when Israel recaptured these territories in 1967, she in fact liberated them from foreign occupation. Thereafter, Israel permitted the repatriation of Israelis to areas from which Jews had been forcibly removed during Jordan’s illegal occupation.

Based on the Jews’ historical connection to Judea and Samaria, as well as the reacquisition of these lands during a war of aggression initiated by belligerent states, Israel could have justified annexing them in 1967 pursuant to Ben Gurion’s Law. Golda Meir’s decision not to do so (only Jerusalem was annexed at the time) was a political decision based on: (a) the naïve hope that the hostile Arab nations (i.e., Jordan, Egypt and Syria) would be willing to negotiate land for peace; and (b) the perceived threat of the Arab demographic “time-bomb.” There was no discussion regarding Palestinian nationhood at that time because no such country had ever existed and there was no Palestinian people clamoring for an independent state. The primary belligerents were Jordan, Egypt and Syria, and the issue of Arab (not Palestinian) refugees was seen as it had always been – as an issue to be negotiated with those nations and resolved in a manner mirroring Israel’s absorption of the nearly 800,000 Jews expelled from the Arab world in 1948.

Instead of negotiations, however, Israel’s diplomatic overtures were rebuffed with the famous promise of “no recognition, no negotiations and no peace.” Thereafter, the Palestinians were declared a people in order to create yet another tool with which to fight the existence of the Jewish State. As stated by Zahir Muhsein in his famous interview with the Dutch newspaper Trouw in 1977, “[t]he ‘Palestinian People’ does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the State of Israel.”