Home inSight Special Report: Close Settlement on the Land (Part I)

Special Report: Close Settlement on the Land (Part I)

Eugene Rostow
An Israeli settler looks at the West Bank settlement of Ma'ale Adumim on the eastern outskirts of Jerusalem. (Photo: AP)

Editors Note: Jewish history in the Land of Israel is contiguous, spanning more than 3,000 years. Its capital has been in Jerusalem since King David’s rule in 1010 BCE. There were periods of occupation by Romans, Byzantines and Sasanids, Arabs, Crusaders, the Ayyubid dynasty and Mamluk Sultanate, and the Ottoman Empire – each leaving a footprint.

These occupations came and went across periods of greater and lesser Jewish habitation – but never without Jewish communities from those days to these.

UN Security Council Resolution 2334, adopted on 2 January 2017, asserts that land acquired by Israel in the course of defending itself in the 1967 Six Day War is to be considered “occupied Palestinian territory.” The resolution has no legal status, but it bears heavily on the politics of our time – politics grounded neither in history nor in law, but rather in anti-Semitism or the pigeon-hearted fear that drives countries to curry favor with Arab and Islamic potentates or terrorists.

The Editors at inSIGHT are departing from our usual pattern of writing and publishing in this column to balance the scales at least a bit to put history and law in their rightful place. For this, we go back to a time before this current political crush but anticipating it in important ways.

Professor Eugene V. Rostow (1913-2002) served as dean of Yale Law School, Undersecretary of State for Political Affairs, and director of the US Arms Control Agency. He co-authored UN Security Council Resolution 242 and was prolific on the role of international law in determining how and where Jews could settle. It is not a spoiler to say his view was “everywhere.” The following – and articles that will appear in the near future – are excerpts from his authoritative 1980 Yale International Law Journal article, “Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate.”

Who, today, even knows what the “British Mandate for Palestine” was a mandate/requirement/demand to do? Read on, and you will and realize how much current anti-Israel diplomacy and international lawfare have departed from history, law and justice.

The Soviet Interest

The exploitation of Arab hostility to the Balfour Declaration, the Palestine Mandate, and the existence of Israel has been a major weapon in the Soviet campaign to dominate the Middle East. The Soviet Union’s use of this tactic is in itself a considerable psychological feat, since the Russians provided Israel with decisive help during the wars of Israeli independence in 1948 and 1949. The anti-Israel card is not the only asset in the Soviet Union’s Middle East hand, but among the Middle Eastern masses it has been trumps.

The goal of the Soviet campaign in the Middle East is to control the oil, the seas, and the air space of the region, and to substitute Communist or Communist-oriented governments for royal and other traditional regimes. Once such control is achieved, the Soviet Union believes, it will be possible for it to outflank Europe and force the United States to dismantle NATO, withdraw its forces, and leave Europe to Soviet domination…

In pursuit of this objective, the Soviet Union has been active from Morocco to Pakistan, and throughout Africa as well, taking advantage of other regional conflicts, many of which it fomented itself. But the attack on the legitimacy of Israel has been the strongest and most effective tool of Soviet strategy in the Middle East. Since the early 1950’s, the Soviet Union has actively supported four major Arab wars against Israel, as well as guerrilla raids, terrorist attacks, and the like beyond counting. The Palestine Liberation Organization (PLO) was planned and established in the 1960’s. In recent years, and especially since November 1973, when Yasir Arafat was first invited to the Soviet Union as guest of the Soviet government, the Soviet Union has played an active – one might say a dominant – role in its activities….

The Soviet calculation has been that Arab dependence upon the Soviet Union would grow as the war against Israel involved and radicalized more and more of the Muslim states of the region. President Sadat’s decision to make peace with Israel, following Egypt’s defeat in the 1973 war, was a serious setback for the Soviet Union. The USSR has moved with great energy to offset and reverse that disappointment, undertaking bold moves in Ethiopia, Somalia, Angola, Sudan, Yemen, Iran, Afghanistan, and the Persian Gulf to strengthen its position. And it has pressed the so-called Palestinian issue with increased emphasis to prevent peace between Israel and its neighbors.

From the beginning, the Soviet Union actively supported the movement to overthrow the Shah of Iran in 1978 and 1979, both through its own efforts and through those of the PLO and the Italian Communist Party… [T]he Soviet move against Iran was also closely linked to the Soviet campaign against Israel. Under the Shah, Iran was the principal bastion of American influence in the area, Israel’s close ally, a positive influence in Jordan, and an ultimate counterweight, should such action become necessary, against Iraq and Syria. Iran’s relation with Israel was one of the reasons the PLO participated so vigorously in the revolt against the Shah.

After the Camp David Agreements between Israel and Egypt were signed in 1978, the Soviet propaganda drums beat with new intensity to encourage their repudiation, or at least their frustration. Policy followed suit…. Among these means, the so-called “Palestine” question is the most effective. Beneath the surface of the propaganda and guerrilla activities, there is a genuine political and human problem – a difficult but not insoluble problem of principle and of accommodation. But the real Palestinian problem bears no relation to the distorted version that has been imposed on the governments, press, and public opinion of the West….

Distorting the Problem

Throughout Europe and the United States, in the General Assembly and the Security Council of the United Nations, and in many other resonant forums, there is an increasingly shrill chorus of demands that Israel be more “flexible” and that the United States “force” Israel to acquiesce in the establishment of a third Palestinian state – an Arab state in the territories of Palestine generally known as the West Bank (including Jerusalem) and the Gaza Strip. It is expected that such a state would be under the control of the PLO. This view is now supported – nominally, at least – by most governments in Western Europe.

On March 1, 1980, the United States came perilously close to accepting the European position by voting in the Security Council in favor of a Resolution calling on Israel to dismantle all the West Bank settlements it had established since June 1967. President Carter, it would seem, was ready to vote for this measure, but not for the corresponding provisions about Jerusalem. In the early months of 1980, it was widely rumored that France had persuaded Great Britain and West Germany to back an effort in the Security Council to modify Resolution 242, adopted after the Six Day War in 1967, and the only feasible basis for efforts to make peace between Israel and its neighbors. The amendment the French are urging would favor “self-determination for the Palestinian people” – a formula intended to pave the way for a third Palestinian state.

As the Middle Eastern troubles of Western policy have become more ominous, with Iran in anarchy and the Soviet Union in control of Afghanistan, the West has been drawn more and more feverishly to the idea of doing something “positive” for the Arabs by getting Israel to accept a second Arab Palestinian state on the West Bank and the Gaza Strip. Such a concession on the part of Israel is necessary, the advocates of this course contend, in order to make it possible for the Arab states of the region to join the United States in resisting the further expansion of Soviet power…

The campaign for a state that is more and more explicitly a PLO state including the West Bank and the Gaza Strip is irrational from the point of view of Western security interests. The emergence of such a state would weaken Israel, the strongest military power in the Middle East, and the most reliable ally of the West in the area, by necessity and conviction. But the irrationality of the idea has not yet affected the momentum of European, American, and Egyptian policy.

They’re Not “Arab” Territories

The legal assumption behind this frantic impulse is that the territories in dispute are in some sense “Arab” territories held by Israel only as military occupant. Once that premise is accepted, it seems to follow that the natural path to peace would be for Israel to evacuate the area, and to allow the population to decide whether to establish a new state or to federate with Jordan.

But the premise from which the familiar prescription derives is erroneous as a matter of history and international law. The only possible geographic, demographic, and political definition of Palestine is that of the Mandate, which included what are now Israel and Jordan as well as the West Bank and the Gaza Strip.

The term “Palestinian” applies to all the peoples who live or have a right to, live in the territory – Jews, Christians, and Muslims alike. Thus, the West Bank and the Gaza Strip are not “Arab” territories in the legal sense, but territories of the Mandate that have never been recognized as belonging to Israel or to Jordan… For reasons that remain compelling, [U.N.] Security Council Resolution 242 prescribes that Israel is under no obligation to withdraw from the West Bank or the Gaza Strip until Jordan makes peace.

Despite its great political appeal, the idea of “self-determination” for all “peoples” is a puzzling and complex factor in the political life of an international system based on the existence and sanctity of states. Most states include more than one people: Spain has Basques and Catalans; France, Bretons; Belgium, Walloons and Flemish; Canada a considerable French-speaking population. The Soviet Union [was] of course a combination of many peoples, widely different in language, religion, and culture. Almost all the African states include a number of tribes.

The United Nations Charter lists self-determination as one of the aspirations of the organization, to be sought by political means, but not by the international use of force. The Charter has been generally interpreted to forbid international help for movements of secession based on the slogan of self-determination. The United States fought the bloodiest war of the nineteenth century to resist the plausible idea of self-determination for the South.

The Mandate

The controversy over the future of the West Bank and the Gaza Strip can be understood only as part of the history of the Palestine Mandate, and the international law of Mandates which lies behind and informs the Security Council Resolutions purporting to govern the process of establishing peace between Israel and its neighbors.

…The Mandate system of the League was the ancestor of the Trusteeship provisions of the United Nations Charter. It was viewed with high hope as an instrument of justice. The founders of the League established the Mandate system in order to liberate peoples who had lived in the colonies and protectorates of empire, and to launch their new states on a footing of dignity and equality. Mandates, they explained, were “trusts,” indeed “sacred trusts.”

Most of the Mandates were trusts for the benefit of their inhabitants. In the case of Palestine, the trust of the Mandate had two sets of beneficiaries.

The decision to establish the Mandate, the document said, recognized “the historical connection of the Jewish people with Palestine and … the grounds for re­constituting their national home in that country.” Unlike other Mandates, the Palestine Mandate was established under the authority of paragraph 8 of Article 22 of the Covenant, which authorized the League Council explicitly to define the terms of a Mandate when the broad general statement of paragraph 1 was insufficient.

The purpose of the Palestine Mandate was “the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.” The Mandatory government was required to facilitate Jewish immigration and “close settlement” in Palestine, subject to the proviso that the Mandatory government could “postpone or withhold” the application of these (and related) articles of the Mandate in the area of Palestine east of the Jordan River.  This was done when Britain established Transjordan as an autonomous province of the Mandate in 1922. But Jewish rights of immigration and close settlement in the West Bank and the Gaza Strip, established by the Mandate, have never been qualified.