The Israeli Flag in front of the U.N. Geneva offices (Source: Israel MFA - Facebook)

Israel's Legal Right To Judea & Samaria Is Enshrined In International Law

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Jay Engelmayer
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The issue of Israel's presence in Judea and Samaria, also known as the West Bank, has been a highly contentious and complex topic. Critics argue that Israel's control over these territories is illegal under international law, often citing UN resolutions and raising Amnesty International and Human Rights Watch reports as evidence of such. Putting aside the fact that Amnesty and HRW are not international legal institutions, there are many academics and legal experts as well as an army of curious, educated students of history who maintain that under the accepted laws and practice of the time, Israel has legitimate legal claims to the land. This piece intends to present a comprehensive analysis of that position, highlighting the legal aspects that support Israel's presence in and even annexation of Judea and Samaria.

To understand the legal basis for Israel's presence in Judea and Samaria, it is crucial to examine the historical context. While Israel’s development in Judea and Samaria is controversial in 2023, the reality is Israel won the land 56 years ago, and it is crucial information that before 1967, the ‘Palestinian cause’ was not even in existence. The terror group Palestine Liberation Organization was created in 1964, and not once in the short time between their founding and the six-day war did they mention Judea and Samaria in their literature or their desires to liberate. Palestinians in Judea and Samaria were not Palestinians, they were Jordanian citizens.

The P.L.O. was founded by the Arab League to represent the aspirations of the Arab States over the territory that was formerly called Palestine. It had been the Pan-Arab philosophy of unifying all the land in the Middle East under an Arab Confederation which drove the Arab States to launch the 1948 Arab-Israeli war. Simply stated, the conflict began not around a people called Palestinians, but rather an idea that was rooted in a sense of Arab superiority and a desire to dominate the region which had been controlled by the Ottoman Empire for centuries. To prove the point that there was no desire from anyone back in 1964 to create a national homeland for the Palestinian people, the initial charter was called the ‘Palestinian National Covenant’ and specifically identified Egyptian leader Gamal Abdel Nasser’s Pan-Arab philosophy as its inspiration, no Palestine, but Arabs. Curiously enough, after the six-day war when Israel controlled Jerusalem, Judea, and Samaria, the ‘Covenant’ was reworded to define more of a nationalistic charter.

The 1967 Six-Day War was defensive, meaning Jordan attacked Israel and Israel defended itself. During that short but productive conflict, Israel not only defended the territory its territory and gained control over what the Jordanians began to call the West Bank, which had been Judea and Samaria for millennia. Before the war, the “West Bank of the Jordan River” was under Jordanian administration, which had occupied the territory illegally after the 1948 Arab-Israeli war. The reason it was an illegal occupation was that the Armistice Line that was drawn up between Israel and Jordan in 1949, commonly known as the "Green Line," was never recognized by any legal body as an international border. Therefore, Israel's presence in Judea and Samaria today cannot be categorized as an occupation in the legal sense.

But to go back even further than 1967 and 1948, one can see that it was in fact, the Jewish State which was violated territorially. The legal foundation for Israel's claim to Judea and Samaria can be traced back to the League of Nations Mandate for Palestine. The Mandate, established in 1922, recognized the historical connection of the Jewish people to the land and aimed to establish a national home for the Jewish people. It specifically mentioned the "close settlement by Jews" throughout the territory, including Judea and Samaria. The Mandate's provisions were preserved under the founding document of the United Nations itself – this is a fact very few people in today’s United Nations even know despite it being enshrined in their version of a constitution. Article 80 of the United Nations Charter ensures the continuity of Jewish rights within these territories.

The League of Nations Mandate for Palestine can be traced to another legal agreement few remember, the San Remo Conference of 1920. The conference recognized the historical connection between the Jewish people and the land of Israel, including Judea and Samaria, and granted the Jewish people the right to reconstitute their national home in the area. The mandate entrusted Britain with the responsibility of facilitating the establishment of a Jewish homeland. It was the Mandate for Palestine that would be tasked with ensuring that a Jewish State be formed in Palestine, and when the San Remo conference was held, Palestine included what is known today as the Hashemite Kingdom of Jordan. 73% larger in size than what Israel is today. Before Transjordan being carved out of Palestine, the Hashemite Kingdom was in Hejaz, which is Western Saudi Arabia today including the Muslim holy cities of Mecca and Medina.

The San Remo conference was the product of a 1917 public statement by the British Government just weeks before the Paris Peace Conference which set the terms for the defeated central armies in World War One. The statement declared its support for a ‘National home for the Jewish People’ in the land of Palestine and came in the form of a letter from Lord Arthur James Balfour to Lord Walter Rothschild. Just over one year later, Emir Faisal from the Kingdom of Hejaz and Chaim Weizmann who was a leader of the Zionist movement and had been directly involved in lobbying the British government for what is now referred to as “The Balfour Declaration,” came to an agreement in which the Hashemites publicly backed the idea of a Jewish home in Palestine. Again, at this stage when the ‘Faisal-Weizmann Agreement’ was signed, Palestine is far larger, and there was no discussion of an Arab State living side by side with a Jewish State, no talk about splitting it whatsoever, no mention at any of these conferences or declarations of a ‘Palestinian people’ – at this stage, it is a blanket ‘National Home for the Jewish People’ in Palestine.



The subject of what happened to Faisal-Weizmann – which is crucial to understand the full picture that it had been brokered by the infamous British Colonel T.E. Lawrence (Lawrence of Arabia) - and how the Hashemites went from being the prestigious rulers of the Muslim Holy Sites to ruling over a mostly barren, thirsty desert and a population of mostly Bedouin tribes is a thesis unto itself, but needless to say, 73% of Palestine was turned into Transjordan and in 1946, the Kingdom of Jordan.



Back to the present day. Israel's control over Judea and Samaria can also be justified under the principle of self-defense. The 1967 Six-Day War was initiated by neighboring Arab states, which posed a significant threat to Israel's existence. As a result, Israel engaged in a defensive war and captured the “West Bank,” including Judea and Samaria, to ensure its security. Under accepted international law at that time, and even today, a state has the right to occupy territory acquired in self-defense until a “just and lasting peace is achieved.” Israel formerly annexed east Jerusalem in 1980, a move that had been widely criticized at the time, but is now accepted by many countries, including the United States which in 1995 ratified a law to move the Embassy to Jerusalem, recognizing the full city as Israel's capital.

Meanwhile, United Nations Security Council Resolution 242 adopted after the 1967 six-day war is often cited as the cornerstone of the Arab-Israeli peace process (note, the language is not about Israel & Palestine). These resolutions, in line with accepted international law call for negotiations to achieve a “just and lasting peace,” including a withdrawal of Israeli armed forces from territories acquired in the 1967 war. However, these resolutions do not specifically demand a complete Israeli withdrawal from all territories. Instead, they emphasize the importance of secure and recognized boundaries “for all parties involved.” Israel's presence in Judea and Samaria today, where maybe 350,000 Palestinians are living under Israeli control in Area C as defined by the Oslo Accords, can be seen as consistent with the spirit of these resolutions, as long as negotiations are ongoing – and Israel has consistently made peace offerings to the Palestinian Authority which have all been rejected. Under its statutes, the United Nations outlines that Israel has been operating in good faith to negotiate a resolution.

Another important legal consideration is the absence of sovereign ownership over Judea and Samaria. Before Israel's control, these territories were not recognized as part of any sovereign state. Jordan's annexation of the West Bank in 1950 was widely regarded as illegal by the international community, with only the United Kingdom and Pakistan recognizing it. This lack of clear sovereignty over the territory leaves room for Israel's legitimate claims based on historical, religious, and security concerns.

Finally, after all that history, enter the “Palestinians.” The Oslo Accords, signed between Israel and the Palestinian Liberation Organization (PLO), provided a framework for the establishment of Palestinian self-governance in parts of the West Bank. Effectively, the very first Palestinian entity in history, the Palestinian Authority was created by Israel itself. This agreement explicitly acknowledged that the final status of these territories would be determined through negotiations between the parties. Therefore, Israel's presence in Judea and Samaria along with the good-faith offers mentioned above, is in accordance with these bilateral agreements.

So, considering all this, while the Israeli presence in Judea and Samaria remains a contentious issue, it is essential to analyze the legal aspects surrounding the matter. While many throw out terms or blanket accusations that Israel is violating international law, the fact is it is not. The fact is Israel has been adhering to the law and most accusations are made from either ignorance or emotions or a combination of both. From the historical context of the Mandate for Palestine to the principle of self-defense and the absence of sovereign ownership, multiple arguments can be made to support Israel's presence in the region. However, it is equally important to acknowledge the complexities and the need for a just and fair solution given the facts on the ground.

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