HOWARD GRIEF
Jerusalem, May 24, 2010
To: Members of the Lev Ha’Aretz Group
A Comment by Attorney Howard Grief:
THE LEGAL CONSEQUENCES OF THE ISRAELI GOVERNMENT’S ABANDONMENT OF JUDEA AND SAMARIA
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.
AN ISRAELI BOY HUGGING HIS FATHER´S GRAVE
An-Najah University Clinic
