Israel’s Right to the Land

The view that the Middle East peace process, the latest phase of which kicks off in Annapolis this week, is essentially a mechanism for the vindication of Palestinian rights over the West Bank and Gaza is widely held here in Western Europe, where an awareness of Israel’s legitimate claims and entitlements has been a casualty of the predominantly left-wing media’s embrace of the Palestinian cause. Whereas Arab prerogatives are exhaustively documented, the Jewish right to this land is almost entirely ignored. The anniversaries this month of three of the founding documents of the modern Middle East present an opportunity to redress the balance and reassert the Israeli case.

November 2 marked the ninetieth anniversary of the Balfour Declaration, the letter in which the British Foreign Secretary, Arthur Balfour, promised Lord Rothschild (and, through him, the Zionist movement) that his government would “use their best endeavours” to establish a Jewish “national home” in Palestine. Approved by the Cabinet two days earlier -- according to Prime Minister Lloyd George it “represented the convinced policy of all parties in our country” -- it made the creation of this “home” an objective of British foreign policy. The Balfour Declaration thus represented the first significant official endorsement of the Zionist project by a world power.

The Declaration was not, in itself, a legally binding document and it has often since been dismissed as nothing more than a statement of British aspirations and intent. However, this ignores the fact that its incorporation virtually unchanged into the League of Nations’ Mandate for Palestine in July 1922 gave its provisions the force of international law. The legal validity of the Mandate, which recognized both the “the historical connection of the Jewish people with Palestine” and their right to the “reconstitute their national home in that country,” was upheld in various international forums and was safeguarded after the dissolution of the League by the United Nations through Article 80 of its Charter. The League of Nations Mandate therefore represents the last legal allocation of the territory that now constitutes Israel, the West Bank and Gaza; the rights it gave the Jewish people have never been abrogated and it remains the legal basis for the Jewish state today.

The right of the Jews to a state in their historic homeland was underscored by UN General Assembly Resolution 181 (UNGAR 181). Passed sixty years ago on November 29, it called for the partitioning of Mandatory Palestine into "Independent Arab and Jewish states." Described by the former Israeli Foreign Minister, Abba Eban, as “Israel’s birth certificate,” UNGAR 181 represented, for the majority in the Zionist camp, international recognition of an antecedent and inalienable Jewish right to self-determination. But as a non-binding recommendatory resolution, it actually constituted moral as opposed to a legal sanction of Jewish statehood. For the Arabs, it represented neither. It was comprehensively rejected at the time, condemned as “entirely illegal” in the Palestinian National Covenant of 1964, and declared “absolutely null and void” by the Seminar of Arab Jurists on Palestine three years later.

In what amounts to an astonishing u-turn, however, UNGAR 181’s legal validity has since been strenuously asserted by the Palestinian side. For instance, the PLO’s 1988 Declaration of Independence stated that UNGAR 181 provided “those conditions of international legitimacy that ensure the right of the Palestinian Arab people to sovereignty.” This position was still being advanced ten years later as Yasir Arafat sought global support for another unilateral declaration of statehood in the spring of 1999. He then proclaimed that “the right for a Palestinian state to exist is based on UNGAR 181 and not on the Oslo Agreements” while his UN representative, Nasser al-Kidwa, argued for its continuing relevance at the United Nations.

But if, as the Arabs contend, UNGAR 181 serves as the legal basis of a Palestinian state, then it must, according to their logic, equally serve as the basis of a Jewish state too. Indeed, the text refers to a “Jewish state” on thirty occasions and demands that the British facilitate “substantial [Jewish] immigration” to effectively ensure that the future Jewish state be Jewish in nature. Therefore, the Palestinians’ present refusal to recognize Israel as a Jewish state flies in the face of their own legal reasoning. They implicitly accept what they explicitly abhor.

The third significant commemoration this month was the fortieth anniversary of United Nations Security Council Resolution 242 (UNSCR 242). Unanimously passed on November 22, 1967, five months after Israel’s stunning victory in the Six Day War, it has generally been interpreted as requiring a unilateral Israeli evacuation of the West Bank and Gaza, thus making illegal Israel's so-called "occupation" of the former. But UNSCR 242 in fact formalizes the status of these territories as “disputed” and therefore legitimizes the Jewish presence there. This status is rooted in the 1949 armistice agreements, which defined the new boundaries between Israel, Transjordan and Egypt as provisional, being “dictated exclusively” by military considerations.

In effectively launching the 1967 war, the Arabs violated these boundaries, thereby invalidating them as de facto borders. The Israeli conquest, the result of a defensive war, constituted a legitimate redrawing of the armistice lines, pending a final settlement. UNSCR 242, drafted as the roadmap to this settlement, stipulates that Israel should withdraw from these new armistice lines “to secure and recognized boundaries” only as part of a negotiated peace, something which has yet to be achieved. And while the resolution does not define what these boundaries should be, its framers made it clear that they should not be the 1949 lines, (i.e. the Green Line), lines they dismissed as entirely unsuitable for a permanent international border. The deliberate omission of the definite article from UNSCR 242’s withdrawal clause was designed to facilitate the necessary revisions. So, until permanent territorial boundaries are demarcated in the context of a comprehensive peace, Israel has an equal right to be in these lands.

The fact is that Israel has a right to more than simply the “peace and security” generally presented as its anticipated dividend from any Middle East peace process. As the Balfour Declaration, UNGAR 181 and UNSCR 242 establish, it also has clear rights to the land and to exist as a Jewish state on it. If Annapolis is to be the beginning of a lasting settlement, all parties to the summit must recognize Israel’s legitimate claims.