The Myth of "Occupied" Territories (Boris Shusteff)

  The Myth of "Occupied" Territories (Boris Shusteff) June, 2001


                      THE MYTH OF "OCCUPIED" TERRITORIES

                              By Boris Shusteff

    One of the most misused, misapplied, and misunderstood definitions in
    the dictionary of the Arab-Israeli conflict is the term "occupied
    territories." The vast majority of people simply do not know the facts
    or misinterpret them, thus completely distorting the real picture of
    the land distribution between the Arabs and the Jews. The truth of the
    matter is that, according to international law, the Jews have the
    complete and unquestionable right to settle the territories of Judea,
    Samaria and Gaza (collectively known as Yesha). Not a single
    enforceable international document exists that forbids them from
    settling the lands of Yesha.

    On the contrary, the only existing enforceable document actually
    encourages Jewish settlement. This document was created on April 24,
    1920 at the San Remo Conference when the Principal Allied Powers
    agreed o assign the Mandate for the territory of Palestine to Great
    Britain. By doing so the League of Nations "recognized the historical
    connection of the Jewish people with Palestine" and established
    "grounds for econstituting their national home in that country."
    Article 6 of the Mandate "encouraged close settlement by Jews on the
    land," including the lands of Judea, Samaria and Gaza (Yesha).

    There is nothing whatsoever in the Mandate that separates Yesha from
    the rest of the mandated territory. That means that the right of the
    Jews to settle the land spreads to the whole of Palestine. As a side
    note it is worth mentioning that the 76% of the territory of Mandated
    Palestine known today as Jordan, were not permanently exempt from
    settlement by the Jews either. Article 25 only allowed to "postpone or
    withhold application of [this] provision."

    With the disbanding of the League of Nations, the rights of the Jews
    to settle the territories of Palestine, including Yesha, were not
    hurt. When in 1946 the United Nations was created in place of the
    League of Nations, its Charter included Article 80 specifically to
    allow the continuation of existing Mandates (including the British
    Mandate). Article 80 stated that "nothing ... shall be construed in or
    of itself to alter in any manner the rights whatsoever of any peoples
    or the terms of existing international instruments to which Members of
    the United Nations may respectively be parties."

    Then in November 1947 came time for Resolution 181, which recommended
    the Partition of Palestine. Like all UN Resolutions pertaining to the
    Jewish-Arab conflict it was not enforceable. It was simply
    arecommendation, and the Arab countries rejected it. As the Syrian
    representative in the General Assembly stated:

    "In the first place the recommendations of the General Assembly are
    not imperative on those to whom they are addressed. The General
    Assembly only gives advice and the parties to whom advice is addressed
    accept it when it is rightful and just and when it does not impair
    their fundamental rights" (1).

    If the resolution had been implemented maybe it would be possible to
    argue that it replaced the San Remo Conference resolution, which had
    legitimized the rights of the Jews to settle in any place in
    Palestine. However, it was not only rejected by the Arabs, but in
    violation of the UN Charter they launched a military aggression
    against the newly reborn Jewish state thus invalidating the
    resolution. By the time of the cease-fire at the end of the War of
    Independence there was still no other enforceable document pertaining
    to the rights of the Jews to settle Eretz Yisrael - they remained
    intact.

    Now we approach the most misunderstood aspect of the scope and
    application of international documents. In order to resolve the puzzle
    of the "occupied" territories, one must clearly distinguish between
    the different types of resolutions passed by the United Nations.
    Misconceptions about the issue led to the question of a double
    standard that was constantly raised by the Arabs after the Persian
    Gulf War. The Arabs were unable to understand why from Iraq the UN
    demanded compliance with the decisions of the international body,
    while Israel was not forced to comply with UN resolutions.

    On April 3, 1998 Swedish Foreign Minister Lena Hjelm-Wallen, well
    known for championing the Arabs' position, in an interview with the
    London al-Quds al-'Arabi, gave an explanation of this "paradox." She
    was asked, "What about the double standards that the United States and
    Europe adopt when it comes to Arab issues?" She answered:

    "I understand this view, which is common in many Arab countries.
    Nevertheless, the UN resolutions passed on Iraq are different, because
    they are binding for all nations according to Article 7 of the UN
    Charter. Meanwhile, the resolutions passed against Israel are not
    subject to Article 7 of the Charter."

    To better understand the way UN resolutions work, it is worth reading
    an open letter by Uri Lubrani, coordinator of Israeli activities in
    Lebanon, addressed to Lebanon's Foreign Minister Faris Buwayz and
    published on February 27, 1998 in the Paris newspaper al Watan
    al-'Arabi. Although the letter was written regarding Resolution 425,
    it talks about all resolutions pertaining to the Arab-Israeli
    conflict. Uri Lubrani wrote the following:

    "There are two types of resolutions in the Security Council. The first
    type are resolutions passed on the basis of Chapter Six of the UN
    charter that relates to the settlement of disputes through peaceful
    means. Such resolutions are considered recommendations. They are not
    binding, and they do not require immediate implementation. The second
    type of resolutions are based on Chapter Seven of the UN charter...
    This chapter grants the UN Security Council resolutions an
    implementative authority and commits the international community to
    use force if necessary to implement these resolutions... None of the
    UN Security Council resolutions pertaining to the Arab Israeli
    conflict, including Resolution 425, were passed on the basis of
    Chapter Seven. They were passed on the basis of Chapter Six of the UN
    charter, which is the basis also of UNSC Resolutions 242 and 338."

    Since no mandatory UN Resolution exists pertaining to the Arab-Israeli
    conflict, we are left with the San Remo Conference decision that
    governs land ownership in Palestine. That means that not a single
    enforceable internationally valid document exists that prevents or
    prohibits the Jews from settling anywhere in Judea, Samaria, Gaza and
    all the rest of Eretz Yisrael. Or, to put it differently, from the
    standpoint of international law FOR THE JEWS IT IS NOT AN OCCUPIED
    LAND.

    This conclusion was confirmed not long ago by an unexpected (for
    Israel) source. It is hard to argue with the fact that James Baker,
    former US Secretary of State, was not the best friend of the Jewish
    state. However, he categorically rejected the mislabeling of the lands
    of Yesha. This happened at the Middle East Insight Symposium in
    Washington on May 4, 1998. Hoda Tawfik, from the newspaper Al Ahram
    asked him, "What do you think is right? That these are occupied Arab
    territories and not disputed territories?" Baker replied, "They're
    clearly disputed territories. That's what Resolutions 242 and 338 are
    all about. They are clearly disputed territories."

    All of this means that when the Jews build settlements in Yesha, they
    are not building them on "occupied" territories. If one wants, one may
    call them "disputed" territories, as Baker did. However, this will
    still not change the fact that from the standpoint of international
    law it is the very land where the Jews were encouraged to settle.

    And as a final note, it should not be surprising that the San Remo
    Conference plays such an important role in this particular case. The
    majority of the other players in the conflict: Egypt, Syria, Iraq,
    Lebanon, Jordan, etc. gained sovereignty over their territories based
    on the decisions of exactly the same conference. The Jews finally
    deserve to settle freely on their territories as well. It is time to
    stop labeling them "occupied".05/07/01

    NOTE:

    1. Abba Eban. Voice of Israel. Horizon Press, New York, 1957.

    ============

    Boris Shusteff is an engineer. He is also a research associate with
    the Freeman Center for Strategic Studies.


    Linkname: The Myth of "Occupied" Territories (Boris Shusteff) June,
           2001
         URL: http://www.freeman.org/m_online/jun01/shusteff2.htm