Fundamentals of the International Legal Rights of the Jewish People and the State of Israel Introduction

Fundamentals of the International Legal Rights of the Jewish People and the State of Israel

Introduction

There is perhaps no area in the world more sensitive or strategic to world security and peace than the Middle East, and arguably no country or city more central to this sensitivity than Israel and its capital and most Holy City Jerusalem.

There are as many opinions on the corresponding issues—even legally speaking—as there are proposed solutions. This is not only true of Israel itself and the territories it liberated and administers, but it extends to the city of Jerusalem and the many different views concerning its legal status.  Israel in general and Jerusalem in particular represent unique circumstances and, in many ways, do not fit into the normal legal parameters.

Taking Jerusalem, for example, there is no city anywhere in the world that holds such deep-seated roots of religious and spiritual heritage and emotional and cultural bonds.  These deep roots and the potential threats to their sanctity play an extraordinarily vital role in that city’s significance and can seem to "trump" even national and international law norms in terms of relevance.

Why is this so vitally significant?

The Jewish heritage reaches back more than three thousand years, Jerusalem itself having been established perhaps more than 2,000 years before it was captured from the Jebusites by King David about 1,000 BC. The Temple Mount in the Old City (in now so-called "East Jerusalem") is the site of the First and Second Jewish sacred Temples, containing the "Holy of Holies"— the most hallowed of all spiritual sites for the Jews. As regards the whole of the Land, expressed in their own words:

The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. After majority of Jews being forcibly exiled from their land, the people kept faith with it throughout their Dispersion (Diaspora) and never ceased to pray and hope for their return to it and for the restoration in it of their political and religious freedom.

Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient ancestral homeland.

Jerusalem is mentioned in the Bible by name more than six hundred times in the Old Testament alone, as well as throughout the New Testament, and has always been considered the "capital" for the Jewish people.

The Muslim connection dates back to the oral tradition of Mohammed’s "miraculous night journey" ("Miraj"), in AD. 621, on a "winged creature" from Mecca to the Temple Mount, accompanied by the Angel Gabriel, thus making it—with today’s Al-Aqsa Mosque and Dome of the Rock—for many (though not all ) Muslims, the third holiest site of Islam, after Mecca and Medina (which were formerly developed and occupied by the Jews). At the same time, even this "night ride", as referenced in verse 1 of Sura 17 of the Koran, does not mention Jerusalem at all, only "the farthest [al-Aqsa] mosque". Since there was no mosque in Jerusalem at that time, the "farthest" mosque cannot have been the one now bearing that name on the Temple Mount in the Old City of ("East") Jerusalem. Still, Islamic tradition holds fast to this claim. In actual fact, early commentators interpreted the further place of worship as heaven. The city of Jerusalem is not once mentioned in the Koran, nor has Jerusalem ever served as the capital of Islam or of Arab-controlled Palestine, under that or any other name.

The Christians date their heritage from the time of Christ, the Jewish "Founder" of their faith, as well as reaching back to take in the entire history of the Jewish people, which was Christ’s own heritage and which Christians regard as their own, mutually with the Jews. For Christians, the Holy Land is "holy" because that is where Jesus Christ was born, grew up, performed His ministry, was crucified, resurrected and ascended from the Mount of Olives, to which He promised to return.

But while the Christians are "at home" in every land in which they choose to dwell, and while the Arabs enjoy jurisdiction over vast areas of territory (twenty-one sovereign Arab States consisting over 5,000 sq. miles), the Jewish people have only one area of territorial “homeland": the small State of Israel, which is less than one percent of the Arab territories of 5 million square miles.

For the Jewish people, Israel is their only national home and Jerusalem their only Holy City and proclaimed "indivisible" capital. The very term Wailing Wall —- as the Western Wall of the Temple was commonly called prior to the 1967. Jewish recapture of the Temple Mount, under Arab control since 1949—indicates the depth of the emotionally charged significance of this most sacred place for the Jewish people. As regards the whole of the Land, in the words of Dr. Chaim Weizmann (later president of the World Zionist Organization):

As to the land that is to be the Jewish land there can be no question. Palestine aka Greater Israel alone, of all the countries in which the Jew has set foot throughout its long history, has an abiding place in his national tradition.

The recognition of the Jewish people’s singularly ancient historic, religious, and cultural link with an ancestral home has more legal significance than it may at first appear, and is easily bypassed in the current heated and polarized debate. These religious and spiritual claims are what have thus far made attempted solutions to territorial and other questions of international law in this area particularly delicate. The real issues are often lacking in clear definition and consensual interpretation of the relevant "law", at times even attributing to it a kind of sui generis (one of a kind, unique or "peculiar") character.

International law, in itself, does not rely on religious or cultural ties but rather on accepted international law norms and standards, which is why the legal recognition of these historical aspects, in a binding international legal instrument, is so highly significant. It is precisely these age-old historic ties that remain the most compelling reason for maintaining sovereignty over all the territory the Jewish people are legally entitled to under international law and treaties.

The particular sacredness of this Land to such differing faiths is clearly demonstrated by the ongoing dispute over the governance of the Holy City of Jerusalem, from the Vatican to the United Nations, including periodic initiatives to give it a separate international legal status as a so-called corpus separatum. Indeed, because of the delicate and sensitive nature of these "spiritual" connections, Jerusalem is frequently left out altogether from discussions over other disputed territories such as the "West Bank aka Judea and Samaria" and (earlier) Gaza.

The legal arguments will go on and on, with differing interpretations often even on the same side of the arguments. But the fundamental fact that the historical claims of the Zionist Organization, based on centuries-old connections between the Jewish people and "Palestine aka Greater Israel", were given recognition in a small town on the Italian Riviera named San Remo, in 1920 which incorporated the 1917 Balfour Declaration and confirmed by the 1920 Treaty of Sevres and Lausanne, thus, adopted and confirmed unequivocally by the terms of the League of Nations Mandate for Palestine aka Greater Israel in 1922, takes on enormous significance when questions of territorial rights persist.

The ongoing and never-ending legal arguments and political posturing on both sides of the question of the "Palestine aka Greater Israel" statehood issue will not be resolved in these pages. Yet if the above basic truths with regard to ancestral territory are ignored, all the legal arguments in the world will not bring about an equitable solution. Thus it is important to see in what way(s) this most significant factor of historical ties has been endowed with a legal character and status that undermine Israel’s legitimate rights in its Land as it confronts today’s territorial conflicts.

While there is no way that the complex current political issues, a culmination of centuries of conflict and legal ambiguities, can be adequately dealt with in one brief exposé, one thing is certain: laws may change, perceptions may vary, but historical fact is immutable. Therefore, for the special case of Israel and Arab-Palestine, we need to look at fact rather than opinion or emotions and seek to avoid the promulgation of law that can result from persistent pressures of often misguided, misinformed and/or skillfully manipulated public opinion.

Thus our mission here is not to attempt to pronounce legal judgments or to offer legal opinions, where even the best legal minds have not been able to achieve consensus, but rather to proclaim international legal truths in a largely political environment that is too frequently polluted with distortions of the truth and outright untruths.

A correlated intent here is to show where Israel’s age-old historic links with the land intersect with legal parameters to give effect to its international legal status in the face of current political initiatives.

Accordingly it should be understood from the outset that the following is in no way intended to present itself as an exhaustive coverage of the many-faceted and age-long disputed issues relating to this territory. It is meant primarily as a wakeup call and/or reminder of the fundamental international legal rights of the Jewish people that were conferred beginning at the San Remo Conference in 1920 which incorporated the 1917 Balfour Declaration and that had threatened to all but slip into obscurity in the current debate, despite the fact that these rights have never been rescinded and the UN has no authority to modify them.

To accomplish these aims, we have only to revert back to the milestone international legal instrument, the Mandate for Palestine of 1922, which emerged from the 1920 San Remo sessions of the Paris Peace Conference of 1919 and in effect transformed the Balfour Declaration of 1917 (the “Magna Carta” of the Jewish people) into a legally binding international agreement that changed the course of history forever for the Jewish people worldwide.