The legality of Israel’s case

Alan Baker, a former legal advisor to the Israel Foreign Ministry and former Israeli Ambassador to Canada, spoke at Netanya AACI on the legality of Israel’s case in regard to the territories, the settlements, the status of Jerusalem, the ICC and the UN Human Rights Council’s investigation of Israel regarding the Gaza war.   Although he intended to focus on Jerusalem, because the Jerusalem Center for Public Affairs (JCPA) that he is connected with has just produced a pamphlet dealing with this issue, he felt he had to cover the other topics, also because of the recent resignation of Prof. Schabas as Chairman of the UN Committee investigating so-called Israeli war crimes in the Gaza war.  This is my summary of his talk, checked by him.

He said that the terms of reference of the Committee established by the UN Commission of Human Rights and the appointment of Schabas in the first place were contrary to law and the outcome of the Commission’s investigation were predetermined and that is why Israel refused to deal with them.  Only after Israel managed to show irrefutable evidence that Schabas had been employed by the PLO in an advisory capacity did he tacitly admit his bias by recently resigning.  But, the main brunt of the investigation has already been completed, based on Schabas’ own biased instructions and direction, and the report is already finalised and as such it is flawed and cannot be considered credible.

It has become routine for the media and many commentators to talk of the “Occupied Palestinian territories” (OPT), but in fact they are no such thing.  First they are not “Palestinian” since there has never been Palestinian sovereignty over them and second they are not “occupied” in the usual sense, namely they were never legally occupied by another State, they were illegally occupied by the State of Transjordan (that changed its name to Jordan) between 1948-1967, so there was never another State occupying them, so their legal status is considered to be sui generis and they are in fact legally defined as “disputed” territories.

According to history, archaeology and legality the Jews have a prior claim to these territories than the Arabs.  In fact the Balfour Declaration of the British Government of 1917 recognizes the right of the Jews to re-establish their sovereignty in the Holy Land, the “re” is very important.  According to all the international instruments and treaties, including the San Remo Treaty of 1920 after WWI, and the British Mandate of the League of Nations of 1922, that was incorporated into the UN Charter, the Jewish claim supersedes all others.   Therefore, statements that Israel (or the Jews) have no rights or title in the territories are erroneous.

The claim of the Arabs, the US and Europeans as to the alleged illegality of Israel’s settlements is based on an incorrect interpretation of Article 49 of the Geneva Convention.   This Article is not relevant, because it refers specifically to forced transfer of populations into occupied territory, as was done by the Germans during WWII with mass transfers of populations in East Europe.  But there was no legal occupation by any state prior to Israel entering these territories, over which Israel has a legitimate claim.  Notably however, Israel has not annexed these territories pending a negotiated agreement, and successive Israeli Governments have frozen construction of any new settlements in the territories.

It is also common for the Palestinians, the US administration and the European governments and their supporters to speak of “the 1967 borders,” whereas in fact there were never any such borders.  The ceasefire lines between Israel and the Arabs between 1948 and 1967 were never recognized as international boundaries or borders and have no legal status.  This is made clear in the wording of UN SC Resolution 242 of 1967, which calls for secure and recognized boundaries and is the basis for negotiations over the status of these territories between Israel and the Arabs (the “Palestinians” were not even referred to in that Resolution).

Jerusalem is of course the proverbial “hot potato” in this situation, but we should remember that there are other parties who have interests and claims to its status, including the Christians and the Arab/Muslim States.  But, once again  Jewish legal rights in Jerusalem exceeds all others.  Whereas the Christians regard it as holy because Jesus Christ was there, it must be remembered that he was Jewish, that he was born and died Jewish and therefore Christian claims only support Jewish claims.

The claims of the Muslims to Jerusalem as the “third” holiest site in Islam (after Mecca and Medina), are based on the Koran’s story of the “night journey” that Mohammed took when he ascended to heaven from the rock under the Mosque of the Dome of the Rock, although it is actually the Al Aqsa mosque that is interpreted as “the farthest mosque” referred to in this story in the Koran, even though “Jerusalem,” is never mentioned in the Koran.  [My comment: But, this is impossible, since Mohammed died in 632 ce and the Al Aqsa mosque was not established until 705 ce, long after the Arab conquest of Jerusalem in 639 ce.  The identification of the Al Aqsa mosque with the “farthest” mosque in the Koran was a later interpretation under Caliph Omar to emphasize the importance of Jerusalem to the Muslims].

Finally, we must consider the International Criminal Court (ICC) that the Palestinians have claimed to join and where they are bringing a case against Israel for “war crimes” of the Gaza war as well as claims against settlements.  But, the ICC was established under the Treaty of Rome of 1989 to enable States to bring criminal cases against notorious war criminals such as Hitler and was a product of the Holocaust.  Charges as such can only be brought by States, and “Palestine” is not a state, it has been given “non-member observer status” by the UN General Assembly, but this is a non-binding non-legal status, so any claim to be party in the ICC is actually not legal.   Furthermore the “war crimes” of Hamas are much more actionable than any supposedly committed by the IDF.  This should give the current PA leadership pause, because they are in league with Hamas, and in fact Abbas has very little popular support and if he does anything drastic he is likely to be replaced by Hamas.  So the Palestinians should fear action against them at the ICC more than the Israelis.  Overall his advice is not to be too concerned about these non-legal threats.


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