The UN passed a resolution to try Israel in the International Criminal Court for the crime of “illegally occupying the Palestinian Territories” last week. But at least one expert in international law refutes the charges, explaining that not only is there no “illegal occupation”, and Israel has the right to annex Judea and Samaria.
On Friday, the United Nations General Assembly’s Special Political and Decolonization Committee voted 98-17 in favor of a draft resolution calling on the International Court of Justice to render an opinion on Israel’s “occupation” of “Palestinian territories” on the grounds that it constituted de facto annexation. The resolution specified that Jerusalem is also included in the judgment while at the same time ignoring its historic and religious connection to the Jewish people. The Temple Mount, the site of both Jewish Temples, is referred to solely by its Muslim name of al-Haram al-Sharif (the Noble Sanctuary).
Israel, the US, Canada, Australia, Austria, Bulgaria, Canada, Czech Republic, Estonia, Germany, Guatemala, Hungary, Italy, Liberia, Lithuania, Marshall Islands, Micronesia, Nauru, and Palau were among the nations who opposed the ICJ referral. There were 52 abstentions.
The resolution must now go before the UN General Assembly for a vote before going to the ICJ.
Ambassador to the UN Gilad Erdan tweeted that “there is no authority that can declare that the Jewish nation is an occupier in its homeland.”
“Exploiting a UN organ by enlisting the UN’s politicized anti-Israel majority for the purpose of forcing your demands instead of negotiating, is clearly a unilateral step,” he said.
“The Palestinians have rejected every single peace initiative, and now they embroil an external body with the excuse that the conflict has not been resolved – but the only reason why it has not been resolved is because of their rejectionism,” Erdan said at Friday’s assembly.
Some experts disagree with the UN’s assessment of the legality of the Israeli presence in Judea and Samaria. Prof. Talia Einhorn lectures on international law and has testified before the US Congress on relations between the PA and Israel. In an authoritative paper on the subject, she discussed the legal issues.
“The status of the West Bank and Gaza in international law is highly controversial,” Prof. Einhorn wrote. “Since they were not taken from any other sovereign state, they are ‘disputed territories’ and not occupied territories.”
She goes on to point out that the entire region was a British mandate until 1948 when Egypt illegally occupied Gaza and Jordan illegally occupied Judea and Samaria.While Egypt never annexed or claimed Gaza, Jordan annexed the “West Bank” in contravention of international law.
“These territories had originally been designated as part of the Jewish national home according to the Mandate document and on this basis, Israel’s presence is not illegal,” Prof. Einhorn noted. “Prominent international jurists opined that Israel was in lawful control of those territories, that no other state could show better title than Israel thereto, and that these territories were not ‘occupied’ in international law. Indeed, Israel was entitled to declare that it has applied its sovereignty.”
While the UN and others claim that Israeli settlements in Judea and Samaria are illegal, Prof. Einhorn disagrees.
“Israel is not a foreign occupying power in the West Bank,” Prof. Einhorn wrote. “Consequently, there is no obstacle to the establishment of civilian Jewish settlements on state lands, whether at the initiative of the state or the Jewish settlers themselves. As far as private property is concerned, Israel is entitled to expropriate private property (in consideration for payment) for various public purposes, according to accepted criteria in law-abiding democratic nations.”
“Even if Israel were an alien occupying power in Yesha, Jewish settlement there would still be permissible under international law,” she concluded.
According to Prof. Einhorn, “although Israel did not actually annex these territories it nevertheless has a priority claim to sovereignty until such time as the dispute is peacefully resolved,” she wrote.It should be noted that Israel did annex all of Jerusalem at that time, in the same manner it applied sovereignty to land captured in the 1948 War of Independence. Arabs/Palestinians in eastern Jerusalem were offered Israeli citizenship but that requires swearing allegiance to Israel and renouncing all other citizenships. At the end of 2005, 93% of the Arab population of East Jerusalem had permanent residency and 5% had Israeli citizenship.