Jerusalem in short has been the focal point of the idea of Jewish national self-determination - Draiman

Jerusalem in short has been the focal point of the idea of Jewish national self-determination.

Ernst Frankenstein, a British-based authority on international law in the inter-war period, made the case for arguing the legal rights of the Jewish people to restore their homeland by stating that they never relinquished title to their land after the Roman conquests. For that to have happened, the Romans and their Byzantine successors would have had to be in “continuous and undisturbed possession” of the land with no claims being voiced. Yet Jewish resistance movements continued for centuries, most of which were aimed at liberating Jerusalem.2

From the standpoint of international law, the fact that the Jewish people never renounced their historic connection to their ancestral homeland provided the basis for their assertion of their historical rights.3 This came to be understood by those who wrote about the Jewish legal claim to the Land of Israel, as a whole. In the Blackstone Memorial, which was signed by Chief Justice of the U.S. Supreme Court Melville Fuller, university presidents, and members of Congress before it was submitted to President Benjamin Harrison in 1891, Palestine is characterized as “an inalienable possession” of the Jewish people “from which they were expelled by force.”4 In short, they did not voluntarily abandon their land or forget their rights. is was most fervently expressed through centuries of lamentation for Jerusalem’s destruction and their constant prayer for its restoration.
Jerusalem was the focal point for the historical connection of the Jewish people to the Land of Israel.

That is why it is essential to understand Israel’s rights in Jerusalem, as they were known once before.
That is also why it is necessary to identify the arguments that have been employed in recent years with the aim of eroding those rights, and the conviction that once underpinned them, in order to protect Jerusalem for future generations. In addition to the historical rights of the Jewish people to Jerusalem that were voiced in the nineteenth century, and were just brie y reviewed, there is a whole new layer of legal rights that Israel acquired in modern times that need to be fully elaborated upon.

MODERN SOURCES OF ISRAEL’S INTERNATIONAL RIGHTS IN JERUSALEM

In 1970, three years after the 1967 Six-Day War, an article appearing in the most prestigious international legal periodical, The American Journal of International Law, touched directly on the question of Israel’s rights in Jerusalem.5 It became a critical reference point for Israeli ambassadors speaking at the UN in the immediate decades that followed and also found its way into their speeches. The article was written by an important, but not yet well-known, legal scholar named Stephen Schwebel. In the years that followed, Schwebel’s stature would grow immensely with his appointment as the legal advisor of the U.S. Department of State, and then finally when he became the President of the International Court of Justice in the Hague. In retrospect, his legal opinions mattered and were worth considering very carefully.

Schwebel wrote his article, which was entitled “What Weight to Conquest,” in response to a statement by then Secretary of State William Rogers that Israel was only entitled to “insubstantial alterations” in the pre-1967 lines. The Nixon administration had also hardened U.S. policy on Jerusalem as reacted in its statements and voting patterns in the UN Security Council. Schwebel strongly disagreed with this approach: he wrote that the pre-war lines were not sacrosanct, for the 1967 lines were not an international border. Formally, they were only armistice lines from 1949. As he noted, the armistice agreement itself did not preclude the territorial claims of the parties beyond those lines. Significantly, he explained that when territories are captured in a war, the circumstances surrounding the outbreak of the conflict directly affect the legal rights of the two sides, upon its termination.

Two facts from 1967 stood out that influenced his thinking:

First, Israel had acted in the Six-Day War in the lawful exercise of its right of self-defense. Those familiar with the events that led to its outbreak recall that Egypt was the party responsible for the initiation of hostilities, through a series of steps that included the closure of the Straits of Tiran to Israeli shipping and the proclamation of a blockade on Eilat, an act that Foreign Minister Abba Eban would characterize as the ring of the first shot of the war. Along Israel’s eastern front, Jordan’s artillery had opened fire and re-pounding civilian neighborhoods in Jerusalem, despite repeated warnings issued by Israel.

Given this background, Israel had not captured territory as a result of aggression, but rather because it had come under armed attack. In fact, the Soviet Union had tried to have Israel labeled as the aggressor in the UN Security Council on June 14, 1967, and then in the UN General Assembly on July 4, 1967. But Moscow completely failed. At the Security Council it was outvoted 11-4. Meanwhile at the General Assembly, 88 states voted against or abstained on the first vote of a proposed Soviet draft (only 32 states supported it). It was patently clear to the majority of UN members that Israel had waged a defensive war.6

A second element in Schwebel’s thinking was the fact Jordan’s claim to legal title over the territories it had lost to Israel in the Six-Day War was very problematic. The Jordanian invasion of the West Bank – and Jerusalem – nineteen years earlier in 1948 had been unlawful. As a result, Jordan did not gain legal rights in the years that followed, given the legal principle, that Schwebel stressed, according to which no right can be born of an unlawful act (ex injuria jus non oritur). It should not have come as a surprise that Jordan’s claim to sovereignty over the West Bank was not recognized by anyone, except for Pakistan and Britain. Even the British would not recognize the Jordanian claim in Jerusalem itself.

Thus, by comparing Jordan’s illegal invasion of the West Bank to Israel’s legal exercise of its right of self-defense, Schwebel concluded that “Israel has better title” in the territory of what once was the Palestine Mandate than either of the Arab states with which it had been at war. He specifically stated that Israel had better legal title to “the whole of Jerusalem.”

Schwebel makes reference to UN Security Council Resolution 242 from November 22, 1967, which over the years would become the main source for all of Israel’s peace e orts, from the 1979 Egyptian Israeli Treaty of Peace to the 1993 Oslo Accords. In its famous withdrawal clause, Resolution 242 did not call for a full withdrawal of Israeli forces from all the territories it captured in the Six-Day War. ere was no e ort to re-establish the status quo ante, which, as noted earlier, was the product of a previous act of aggression by Arab armies in 1948.

As the U.S. ambassador to the UN in 1967, Arthur Goldberg, pointed out in 1980, Resolution 242 did not even mention Jerusalem “and this omission was deliberate.” Goldberg made the point, reacting the policy of the Johnson administration for whom he served, that he never described Jerusalem as “occupied territory,” though this changed under President Nixon.7 What Goldberg wrote about Resolution 242 had added weight, given the fact that he previously had served as a Justice on the U.S. Supreme Court.

Indeed, among the leading jurists in international law and diplomacy, Schwebel was clearly not alone. He was joined by Julius Stone, the great Australian legal scholar, who reached the same conclusions. He added that UN General Assembly Resolution 181 from 1947 (also known as the Partition Plan) did not undermine Israel’s subsequent claims in Jerusalem. True, Resolution 181 envisioned that Jerusalem and its environs would become a corpus separatum, or a separate international entity. But Resolution 181 was only a recommendation of the General Assembly. It was rejected by the Arab states forcibly, who invaded the nascent State of Israel in 1948.

Ultimately, the UN’s corpus separatum never came into being in any case. The UN did not protect the Jewish population of Jerusalem from invading Arab armies. Given this history, it was not surprising that Israel’s first prime minister, David Ben-Gurion, announced on December 3, 1949, that Revolution 181’s references to Jerusalem were “null and void,” thereby anticipating Stone’s legal analysis years later.8

There was also Prof. Elihu Lauterpacht of Cambridge University, who for a time served as legal advisor of Australia and as a judge ad hoc of the International Court of Justice in The Hague.
Lauterpacht argued that Israel’s reunification of Jerusalem in 1967 was legally valid. 9 He explained that the last state which had sovereignty over Jerusalem was the Ottoman Empire, which ruled it from 1517 to 1917.

After the First World War, the Ottoman Empire formally renounced its sovereignty over Jerusalem as well as all its former territories south of what became modern Turkey in the Treaty of Sevres from 1920. is renunciation was confirmed by the Turkish Republic as well in the Treaty of Lausanne of 1923. According to Lauterpacht, the rights of sovereignty in Jerusalem were vested with the Principal Allied and Associated Powers, which transferred them to the League of Nations.

But with the dissolution of the League of Nations, the British withdrawal from Mandatory Palestine, and the failure of the UN to create a corpus separatum or a special international regime for Jerusalem, as had been intended according to the 1947 Partition Plan, Lauterpacht concluded that sovereignty had been put in suspense or in abeyance. In other words, by 1948 there was what he called “a vacancy of sovereignty” in Jerusalem.

It might be asked if the acceptance by the pre-state Jewish Agency of Resolution 181 constituted a conscious renunciation of Jewish claims to Jerusalem back in 1947. However, according to the resolution, the duration of the special international regime for Jerusalem would be “in the first instance for a period of ten years.” The resolution envisioned a referendum of the residents of the city at that point in which they would express “their wishes as to possible modifications of the regime of the city.”10 The Jewish leadership interpreted the corpus separatum as an interim arrangement that could be replaced. They believed that Jewish residents could opt for citizenship in the Jewish state in the meantime. Moreover, they hoped that the referendum would lead to the corpus seperatum being joined to the State of Israel after ten years. 11

Who then could acquire sovereign rights in Jerusalem given the “vacancy of sovereignty” that Lauterpacht described? Certainly, the UN could not assume a role, given what happened to Resolution 181. Lauterpacht’s answer was that Israel filled “the vacancy in sovereignty” in areas where the Israel Defense Forces had to operate in order to save Jerusalem’s Jewish population from destruction or ethnic cleansing. The same principle applied again in 1967, when Jordanian forces opened fire on Israeli neighborhoods and the Israel Defense Forces entered the eastern parts of Jerusalem, including its Old City, in self-defense.

A fourth legal authority to contribute to this debate over the legal rights of Israel was Prof. Eugene Rostow, the former dean of Yale Law School and Undersecretary of State for Political Affairs in the Johnson administration. Rostow’s point of departure for analyzing the issue of Israel’s rights was that the Mandate for Palestine, which specifically referred to “the historic connection of the Jewish people with Palestine” providing “the grounds for reconstituting their national home in that country.”

These rights applied to Jerusalem as well, for the Mandate did not separate Jerusalem from the other territory that was to become part of the Jewish national home.

Rostow contrasts the other League of Nations mandates with the mandate for Palestine. Whereas the mandates for Iraq, Syria, and Lebanon served as trusts for the indigenous populations, the language of the Palestine Mandate was entirely different. It supported the national rights of the Jewish people while protecting only the civil and religious rights of the non-Jewish communities in British Mandatory Palestine.12 It should be added that the Palestine Mandate was a legal instrument in the form of a binding international treaty between the League of Nations, on the one hand, and Britain as the mandatory power, on the other.

Rostow argued that the mandate was not terminated in 1947. He explained that Jewish legal rights to a national home in this territory, which were embedded in British Mandatory Palestine, survived the dissolution of the League of Nations and were preserved by the United Nations in Article 80 of the UN Charter.13 Clearly, after considering Rostow’s arguments, Israel was well-positioned to assert its rights in Jerusalem and fill “the vacancy of sovereignty” that Lauterpacht had described.

As Professor Stephen Schwebel, former judge on the Hague’s International Court of Justice notes:

The Palestinian claim to sovereignty over east Jerusalem under the principle of self-determination of peoples cannot supersede the Jewish right to self-determination in Jerusalem. While Arabs constituted an ethnic majority only in the artificial entity of “East Jerusalem” created by Jordan’s illegal division of the city, the armistice lines forming this artificial entity were never intended to determine the borders of, or political sovereignty over, the city. Moreover, Jews constituted the majority ethnic group in unified Jerusalem both in the century before Jordan’s invasion, and since 1967 (the exception being during Jordan’s illegal occupation).

Sir Elihu Lauterpacht, an international legal expert, scholar and director emeritus of the Lauterpacht Centre for International Law at the University of Cambridge, details the legal justification for Israel’s sovereignty in east Jerusalem. According to the scholar, “Jordan’s occupation of the Old City-and indeed of the whole of the area west of the Jordan river entirely lacked legal justification” and was simply a “de facto occupation protected by the Armistice Agreement.” This occupation ended as a result of “legitimate measures” of self defense by Israel, thereby opening the way for Israel as “a lawful occupant” to fill a sovereignty vacuum left by Britain’s withdrawal from the territory in 1948.

furthermore:

A state acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense……Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.

As Schwebel explains, “Jordan’s seizure [in 1948] and subsequent annexation of the West Bank and the old city of Jerusalem were unlawful,” arising as they did from an aggressive act. Jordan therefore had no valid title to east Jerusalem. When Jordanian forces attacked Jerusalem in 1967, Israeli forces, acting in self defense, repelled Jordanian forces from territory Jordan was illegitimately occupying. Schwebel maintains that in comparison to Jordan, “Israeli title in old (east) Jerusalem is superior.” And in comparison to the UN, which never asserted sovereignty over Jerusalem and allowed its recommendation of a corpus separatum to lapse and die, he sees Israel’s claim to Jerusalem as similarly superior.

A general point about any nation's "right to exist" and four specific questions about the recent history of the Middle East:

A general point about any nation's "right to exist" and four specific questions about the recent history of the Middle East:

If Israel has no right to exist, what is America's right to exist?

Both countries give the same answer: refugees and settlers from around the world came to our land and built up a nation over more than a century, making major sacrifices in blood and toil to establish a new nation based on shared ideas rather than long-time indigenous residence. If anything, Israel's claim to legitimacy is MUCH stronger than the US claim for three reasons:

1) No one claims that the Brits (and others) who settled North America were coming back to an ancestral homeland.

2) No international organization ever recognized their right to that homeland, As the Faisal Weizmann Agreement of January 1919 and as the San Remo Conference of April 1920 implemented by the League of Nations did for Israel in 1923 and the United Nations did confirm the 1920 international agreement in 1947.

3) No one can possibly claim that Israeli settlement caused a demographic disaster for the native population since the Arab-PALESTINIAN population of the country is now more than 50 times greater than it was when additional Jewish return to their homeland began in earnest in the 1880's. At no time—in no decade—did Arab-Palestinian population decline in Palestine, but the Native American population in the U.S. drastically declined (mostly through disease, by the way) from the beginning of European colonization (1607) until 1900 (when Indian numbers began a dramatic rise).

Four questions:

1) If Palestine was the ancient homeland of an ancient people with their own strong sense of national identity, can anyone name, please, the most famous Arab-Palestinians produced in those centuries and millennia of history? Who was the most celebrated of all in the long line of Arab-Palestinian kings, or viceroys, or prime ministers? Which Arab-Palestinian poet or philosopher stirred the world with his words and ideas? Which great Arab-Palestinian scientist or inventor or composer or painter achieved international or even regional renown? The inability to answer that question doesn't testify to a lack of ability or brilliance: it testifies to the synthetic, phony nature of the invented "Arab-Palestinian" identity. There were no remarkable or brilliant kings of Arab-Palestine because there were no kings of Arab-Palestine at all—no Arab nation ever existed in this area, only ill-defined pieces of various Islamic, Turkic, Byzantine and Roman empires over the course of 2,000 years. The only time any national identity existed centered on this particular piece of real estate, that national identity was Jewish: that's why the only famous "Palestinians" who ever existed were Jews, from King David to Jesus to Moses Maimonides (died in Israel in 1215) to David Ben Gurion. No "Palestinian" Arab nationalism ever existed, as distinct from Pan-Arabism, until Yasser Arafat (born in Egypt, raised in Kuwait) invented it as a pure fabrication after the June war of 1967.

2) If Arab-Palestinians merely yearn to establish their own homeland on the West Bank, Gaza and in East Jerusalem, why did they make no effort to do so—and no progress in doing so—during the twenty years when all those territories were in unquestioned Arab control (1947-1967) without a single Jewish "settler" or even resident allowed to live there? The ancient Jewish Quarter of the old city of Jerusalem, inhabited by a religious Jewish community without interruption for more than 3,000 years, had been liquidated of all Jews, with more than 50 major synagogues utterly destroyed—by explosions and bulldozers—after the Old City fell to Jordanian troops in 1949 and Jewish cemeteries destroyed and used for construction. Before the war of extermination launched by President Abdul Nasser of Egypt in May, 1967, there were ZERO Israeli communities anywhere in "Arab-Palestinian territory" but no moves toward statehood. Isn't this definitive proof that the whole purpose of "Arab-Palestinian nationalism" has nothing to do with building an Arab-Palestinian state (where one never, ever existed) but in destroying a Jewish state (which did exist in the region going back over 3,000 years ago for more than 1,000 years)?

3) Zionism and additional Jewish return to that ancient homeland began in the 1880's. Before Hitler even came to power, a half million Jews had settled permanently in today's Israel and built whole new cities where none ever previously existed (Israel's largest city, Tel Aviv, was founded in 1909 on empty sand dunes, purchased from their absentee owners, and today the metro area is home to 4,000,000 Jews and more than 42% of Israel's population). Question: during all this energetic and fateful Jewish resettlement, when did the very first Arab-Palestinian refugees lose their homes and find themselves driven from their ancient patrimony? Answer: only AFTER 1948, and the war of destruction launched by local Arabs and, ultimately, their Egyptian, Syrian, Jordanian Lebanese and Iraqi allies in 1948-1949. The population figures are unequivocal, undeniable, compiled not by Jews and Zionists but by Ottoman Turks, Brits, and Palestinian Arabs themselves: Jewish settlement didn't drive Arab-Palestinians from the land, but rather attracted them to it in unprecedented numbers. In fact, the Arab-Palestinian population not only increased alongside the Jewish population, but increased at faster rates: between WWI and WWII (1918-1929) the Jewish population went up by 490,000 and the Palestinian Arab population rose even quicker and went up by 588,000. Arab-Palestinian life expectancy, living standards and education levels also improved spectacularly, as measured by all international and Arab organizations.

4) If Israel is truly an alien presence imposed on the region by the imperialist, colonialist designs of the United States and its Western allies, due to the overwhelming power of conspiring Zionists and Jewish voters, then how many American troops have lost their lives or even risked their lives on Israel's behalf in the 65 years of the nation's history? Answer: absolutely zero. In none of Israel's wars did American military forces take an active role. In fact, in Israel's War of Independence (1948-49), while the young nation lost more than 1% of its total population on the battlefield (the equivalent of 3,100,000 Americans today), the Israel Defense Forces were crippled by an all-encompassing American arms embargo that prevented any material or military assistance to the Jewish state. Arab oil interests have always been more influential on shaping Western policy than Zionist pressure or pleas.

During all the years of Hitler's Holocaust (1939-45), and in the three years immediately following the war, the British government did NOTHING to help Jewish refugees who tried to flee to Israel and in fact blocked and banned their emigration entirely, arresting and deporting any Jews who attempted to enter the area of Mandatory Palestine (today's Israel, Arab-Palestinian controlled territories, and Jordan). As recently as 1967, when Egypt's dictator Abdul Nasser repeatedly announced his intention to "eliminate" the Jewish presence in the region and ordered the UN peace-keeping troops to get out of his way (they immediately complied), the US Secretary of State Dean Rusk announced to the world that America would remain "neutral in thought, word and deed" and would do nothing to rescue the threatened Jewish population.

Major US Foreign Aid to Israel didn't begin until after the October War of 1973, as part of an effort by the Nixon and Carter administrations to bribe the Israelis, basically, to return the Sinai Peninsula to Egypt. Part of the peace agreement brokered by Carter involved promises of aide at its current levels to both Egypt and Israel. In 1967, Israel won its war against Egypt, Syria and Jordan without any American planes in its air force; the nation relied on French "Mirages" it had purchased to confront the advanced Russian MIG’s used by the other side, the Arabs.

Finally, if pro-Israel policies are the result of Jewish influence rather than American self-interest, then why do Jewish voters remain unshakably committed to the Democratic Party which has been consistently less supportive of Israel's interests than the Republicans? The most pro-Israel political figures in American history—“Mr. Republican" Bob Taft, Barry Goldwater, Ronald Reagan, George W. Bush—NEVER attracted a majority of Jewish votes, but the most anti-Israel nominees—George McGovern and Jimmy Carter—unfailingly performed well in the Jewish community as long as they were Democrats. Since FDR, only one Democrat failed to win more than 60% of the Jewish vote: Jimmy Carter in 1980, who saw the Jewish vote split three ways (and nearly evenly) between himself, liberal independent candidate John Anderson, and Reagan. In 2012, Romney (a personal friend of Netanyahu's for 30 years) was clearly, unabashedly more pro-Israel than Obama (who had feuded publicly and bitterly with the Israeli government) but Obama still drew 70% of the Jewish vote.

As to the belief that a more pro-Arab Palestinian policy on the part of the US would lead to reduced terrorism against American targets, consider that the worst, bloodiest terrorists outrages in US history all were launched and planned under the most pro-Arab Palestinian administration in US history. Bill Clinton not only presided over the Oslo Accords, granting recognition to the Arab-Palestinian Authority, but met more frequently with Yasser Arafat than he did with any foreign leader. Yet under Clinton, Islamist terrorists plotted the first AND second World Trade Center bombings (yes, 9/11 was entirely planned and set up during Clinton), the Embassy Bombings in East Africa, Khobar Towers, the USS Cole, and so forth. Under that pro-Palestinian US regime, and the similarly pro-Arab Palestinian Israeli regimes of "peace makers" Rabin and Peres, Israeli deaths at the hands of terrorists averaged nearly 200 per year; under the "get tough" policies of Ariel Sharon, Ehud Olmert and Netanyahu, those deaths have averaged less than 20 a year.

These are facts.

Please invite any doubters to check them out, with independent sources.

The facts—and the four questions posed above—simply do not conform to the anti-Israel narrative. How, for instance, can you describe Arab-Palestinians as a people dispossessed when their population swelled and their conditions dramatically improved simultaneous to mass Jewish immigration?