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THE LEGAL CONSEQUENCES OF THE ISRAELI GOVERNMENT'S ABANDONMENT OF JUDEA AND SAMARIA

by Howard Grief

The core thesis of my book, The Legal Foundation and Borders of Israel under International Law, is that de jure sovereignty over all of Eretz-Israel was vested in the Jewish People, i.e., world Jewry, as a result of the adoption of the San Remo Resolution of April 25,1920 by the Principal Allied Powers of World War I (Britain, France, Italy and Japan), a coalition of nations that defeated and dismembered the Ottoman Turkish Empire and then allotted those lands to various national beneficiaries.

In 1920, there was of course no State of Israel, but the Zionist Organization (now called the World Zionist Organization) represented the national aspirations of the Jewish People to bring about a future independent Jewish State. In 1929, a second representative body was formed: the Jewish Agency for Palestine (now: the Jewish Agency for Israel) — in accordance with Article 4 of the Mandate for Palestine. It was these two Jewish-Zionist bodies that were instrumental in the eventual rebirth of the Jewish State of Israel, that officially came into existence on May 15,1948. In point of law, de jure sovereignty over the land of the Jews was devolved or transferred from the Jewish People via the Zionist Organization and the Jewish Agency to the State of Israel as of that date. However, the devolution of sovereignty was exercisable — in a de facto sense — only over those areas of the Land of Israel that were at that time in the actual physical possession of the State of Israel, while other integral areas of the Jewish National Home remained under illegal Arab control in 1948.

The situation was drastically changed by the Six-Day War of June 5-10, 1967 when eastern Jerusalem, Judea, Samaria, Gaza, the Golan Heights and Sinai were all liberated from foreign Arab occupation by the Israel Defense Forces. The astounding Israeli victory in the war was, however, accompanied by a legal farce perpetrated by the legal advisers of the Eshkol National Unity Government, chief among whom was the then-Military Advocate-General Meir Shamgar, the future Attorney General and President of the Israel Supreme Court. Instead of applying Israeli law to the liberated territories, as required by the then-existing Israeli constitutional law, the Eshkol Government — acting on Shamgar's misguided advice — shortsightedly and unconstitutionally applied international law (i.e., the laws of war, embodied in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949), thus creating the harmful world-wide impression that Israel was henceforth an Occupying Power of "foreign lands" belonging to Arab states. That is the only reason why Judea, Samaria and Gaza came thereafter to be called "occupied territories", both inside Israel and abroad, a misnomer that persists universally today, even among Israel's friends and institutions, such as the Israeli Supreme Court.

Under Israeli constitutional law that existed at the outset of the Six-Day War, the government of Israel was legally obliged to apply the law of the State of Israel — and not international law — to the liberated territories. This obligation was inherent in the 1948 law known as the Area of Jurisdiction and Powers Ordinance and the two Proclamations issued under its provisions, namely, the Jerusalem Proclamation of August 2, 1948 and the all-embracing and open-ended Land of Israel Proclamation of September 2, 1948. These enactments had one purpose only: to extend the area of the Jewish State beyond its narrow borders as recommended in the UN General Assembly Partition Resolution of November 29, 1947 in order to embrace and incorporate into the State all other areas of the Land of Israel in Arab hands that had been re-possessed by the Israel Defense Forces. To achieve precisely that, it was in fact this law and the two proclamations that were invoked in 1948 by Prime Minister and Defense Minister David Ben-Gurion. This legal mechanism paved the way for cities such as Nahariya, Nazareth, Ramle, Lod, Beersheba, Ashdod (Isdud), Ashkelon (Majdal) and other places that were not yet part of the State of Israel on May 15, 1948 — to be brought within its boundaries. It may surprise many to know that the 1948 Ordinance and the Land of Israel Proclamation are still very much in force, and can even be invoked again, without new Knesset legislation, if the Government of Israel so desires, in order to incorporate Judea, Samaria and Gaza into the State of Israel.

The pressing question that arises at this point is what would happen if, instead of incorporation or annexation, the Israeli Government decides to abandon or cede Judea, Samaria to the Arabs as indicated by the Road Map Peace Plan and the Two-State Solution. In this respect it should be noted that what was done to the Jewish inhabitants of the Gaza district and northern Samaria was a violation of the 1950 Law of Return, an infringement that the Supreme Court ignored in its decision approving the legality of the Disengagement Implementation Law of 2005. The discussion here will therefore be limited to the fate of Judea and Samaria.

The sovereignty now vested in the State of Israel over Judea and Samaria, but which is inexplicably neither asserted nor even recognized by the Israeli Government, can, in my opinion, be exercised by the 300,000 or more Jewish residents of Judea and Samaria in the event and only in the event that the Government of Israel withdraws completely from this territory and leaves it once again to the mercies of Arab terrorists. As a matter of law, it should always be remembered that the State of Israel acts only in the role and capacity of agent and assignee of the Jewish People, and simply has no legal authority to renounce the right or rights that legally belong eternally to the Jewish People as a whole, not only of this generation but also of all future generations, as Ben-Gurion noted at Basel in 1937. Thus if the State acts contrary to its power as agent and assignee of the Jewish People who are directly and adversely'affected by its renunciation of the right of sovereignty over Judea and Samaria and its transfer of de facto control over the land to an Arab entity, i.e., to the "Palestinian Authority" or the "Palestine Liberation Organization", then the right of sovereignty reverts back to the Jewish People, the original and implied sovereign of Palestine under the San Remo Resolution, and as a result other representatives of the Jewish People can legally act in its place and stead. This applies particularly to the Jews of Judea and Samaria who are part and parcel of the Jewish People in whom sovereignty over all areas of Eretz-Israel ultimately vests, who presently implement Israel's de facto sovereignty over Judea and Samaria and who would suffer great injury by any decision of the Government of Israel to cede Judea and Samaria to foreigners.

The Jews of Judea and Samaria would, in fact and in law, be well within their constitutional rights to remain living in those territories under the most significant law of the State of Israel, the Law of Return, that enshrines in its provisions the two-thousand-year-old Jewish Right of Return and, assuming Government abandonment, to take the necessary steps to govern themselves in an independent State of Judea and Samaria.

Howard Grief is an eminent international lawyer and author of "The Legal Foundation and Borders of Israel under International Law." Contact him by email at GriefIsrael@yahoo.com This article was submitted June 15, 2010.