The legal case for Judea and Samaria

If international legitimacy for the settlement enterprise were a horse, one could say that it's been long out of the barn. Those roaming the halls of power worldwide -- from the White House in the era of Barack Obama and John Kerry to the United Nations -- have for years regarded the territories of Judea and Samaria as Palestinian territory that is currently under occupation.

The hostile attitude toward the settlement enterprise is a natural, direct derivative of this premise. If we were to make a gross generalization, the world has adopted the Palestinian narrative as it relates to the legal status of the territories. Even those who negotiate on behalf of the State of Israel, men and women who officially adhere to the party line that Judea and Samaria, the cradle of Jewish civilization and peoplehood, is not occupied territory, have long ceased to make this statement publicly, just as they haven't even bothered to make use of a long list of legal and historical arguments that support this position.

While it may seem that this train has long left the station, we were surprised to suddenly learn that for months now a counterattack has been waged over "the historical, legal truth." This is a campaign that is being waged by hundreds of jurists from Israel and abroad who aren't making do with the usual "rights of our forefathers" or "Zionism" rejoinders which are now devoid of currency in the international arena and the High Court of Justice.

Last summer, right-wing organizations and settlers managed to bring together a number of highly regarded legal minds -- including those who are not traditionally aligned with right-wing politics. These individuals set out on a mission to change the terminology and the legal discourse that the left, including groups like Peace Now, has assumed control of for quite some time.

The so-called "new" jurists are really just dusting off old arguments that were first made and eventually accepted in the initial years following the Six-Day War. This new line of discourse categorically rejects the premise of "occupied territories." The State of Israel did indeed conquer Judea and Samaria in 1967 as the result of a war of self-defense, but from a legal standpoint these territories are not occupied since the foreign power that held these territories between 1948 and 1967 -- Jordan -- did so illegally.

These jurists note that with the exception of Britain and Pakistan, the international community refused to recognize the Jordanian annexation of the West Bank. Therefore, the legal status of these territories is in dispute. From the standpoint of international law, there is an enormous difference between occupied territories and disputed territories.

Those who bolster this argument -- and some jurists do indeed do this -- with what is referred to as "the historic right of the Jewish people to sovereignty over the Land of Israel" add another legal statement in support of their case: "Demanding the right to this sovereignty, which supersedes any counter-demand by the Palestinians."

Jurists like Professor Talia Einhorn or Professor Eliav Shochetman, who are two of the more active legal experts in the group, note that this right was recognized by the international community from the time of the British Mandate for Palestine. This legal document granted national rights solely to the Jewish people, which were in turn reaffirmed in Article 80 of the United Nations Charter.

"As such, when the U.N. secretary-general states that 'the settlements are illegal and are an obstacle to peace,' or when [Palestinian Authority President] Mahmoud Abbas demands that Israel 'dismantle the settlements built on Palestinian land since 1967, since their very establishment is illegal,' and when even the U.S. Secretary of State, John Kerry, refers to the settlements as 'illegitimate' -- all of them are basing their statements on errant legal assumptions from a factual standpoint," said Dr. Hagai Winitzki of Sha'arei Mishpat College.

The renaissance that the "new jurists" are trying to infuse into the discourse to make an Israeli case for Judea and Samaria has for years been proudly trumpeted by the Foreign Ministry on its web site. It has even been articulated into a codified doctrine by the former president of the Supreme Court, Meir Shamgar. This case rested on a number of international resolutions and historical facts that were almost wiped clean from the public record but in recent years have been resurrected by a number of organizations.

Two of these groups, which began work just recently, are drawing the most attention. First, there's the Regavim Institute's Center for Zionism, Justice, and Society. For years, Regavim has provided assistance in court cases which hear petitions brought on by left-wing groups against settlements in Judea and Samaria. It even shocked the judicial system when it brought its own petition against "Palestinian outposts" in an attempt to defend Jewish settlement in these areas.

The other organization is the Legal Forum for the Land of Israel, which was originally founded as a group dedicated to pursuing legal means to defeat the disengagement plan.

The inaugural convention held by the Center for Zionism took place a few weeks ago at the Mishkenot Sha'ananim event hall in Jerusalem. The occasion also featured the unveiling of an impressive new book that delves into property laws and international law in Judea and Samaria. The book is 560 pages long, and it includes a number of articles by renowned legal scholars like Prof. Haim Sandberg and Prof. Einhorn.

One of the most noteworthy articles that appeared in the book was written by Col. (res.) Daniel Reisner, an expert in international law and the former head of the international law department in the Military Advocate General's Corps. Today, Reisner is a partner in the Herzog Fox Neeman law firm.

Reisner's position is interesting not just because of his professional background, but also because he is a jurist who is not aligned with the political right and who recognizes that the Palestinians also have claims to Judea and Samaria.

In his article, Reisner expresses understanding for Israel's formal position "because since the territories of Judea and Samaria were never a legitimate part of any Arab state, including the Kingdom of Jordan, it is impossible to determine that Israel is an occupier in Judea and Samaria in the accepted legal definition. What's more is that the Jewish people have a historic, legal, and physical link to Judea and Samaria."

Reisner is a senior jurist who took part in all of the major diplomatic negotiations since the Oslo Accords. Today he serves as an advisor to Israel's peace negotiators. He believes that the position taken by most experts who are well-versed in international law against Israel's claims does not stem from the weakness of Israel's legal arguments, but rather is the result of the fact that most of the countries of the world have adopted the Palestinian narrative which holds that the territories of Judea and Samaria belong to the Palestinian people.

"Even if it seems that the battle is lost, that doesn't mean it's a reason to give up on a real, genuine legal argument," he said. "Israel didn't conquer these territories from any state because Jordanian control of the West Bank was illegal. If Israeli control over Rachel's Tomb in Bethlehem in 1967 was illegal because of the illegality of taking over a territory by force, then the Jordanian occupation of that same complex in 1948 suffers from exactly the same problem."

"Conversely, if one claims that the Jordanian occupation of 1948 was legitimate because before that the territory wasn't under the sovereignty of another state, then that just strengthens a similar Israeli argument," he said.

Reisner recommends that we do not take the simplistic approach of treating Judea and Samaria as a single, solitary entity.

"There is no uniform law that applies equally to Ramallah -- where there was never a Jewish presence -- and Hebron -- where a constant Jewish presence spanning hundreds of years was cut short by a horrific massacre," he said. "There is no uniform law that applies equally to Al-Khader, which was and remains an exclusively Arab village, and the settlements of nearby Gush Etzion, which like Rachel's Tomb was in sole Jewish control before the War of Independence. And of course there is no uniform law that applies equally to the Old City of Jerusalem, the historic site of two Jewish temples, and the neighborhood of Abu Dis nearby."

In addition, Reisner finds legal backing for distinguishing between territories and specific sites in Judea and Samaria. Such language can be found in U.N. Security Council Resolution 242. The wording of the resolution calls for "withdrawal of Israeli armed forces from territories conquered" in the Six-Day War. It doesn't call for withdrawal from "the" territories.

"This shows that there really isn't an insistence on all of the territories that were captured during the war," Reisner said. "In any event, despite what the world thinks about us, it is impossible to peg us as foreign occupiers that are without any rights to these regions, and whoever ignores this part of the story is simply deviating from the truth."

Is this argument, as factually correct as it may be, even relevant now, with the world and even the State of Israel talking in a different language? Isn't it too late?

Reisner: "The conflict has a political dimension and a legal one. Nonetheless, the solution to the conflict won't necessarily be found in either of these two dimensions, but in my opinion it will rather be based on something totally different -- a fair compromise that will create a stable reality over time. The odds of one party to the conflict managing to convince the other to accept competing legal and political positions are nil."

Still, Reisner is convinced that "Israel needs to make its case cogently from a legal, political, and historic standpoint simply because it has its own truth that is backed up by facts."

"Will the solution be based on this truth? Is this truth relevant to the results of the negotiations? I'm not entirely certain."

If there is a legal case to be made, why don't the state's negotiators use it in the talks?

"Because inside the negotiating room it's almost irrelevant. International law has a relatively marginal role to play in Israeli-Palestinian agreements. The bottom line is the one that both sides need to live with. Legal arguments help you. They give you an internal anchor, but in negotiations it is almost never a winning argument. In any event, a legal claim is never weakened or nullified because it is up to people to either make the claim or not make the claim. If you have a truth and you believe in it, speak up!"

Do the political opinions of jurists who are participating in the negotiations or the opinions of prosecutors have an effect on their legal positions?

Reisner: "I don't know."

Alan Baker, an attorney and a member of the Levy Committee which was formed in 2012 to investigate the legal status of the outposts and the settlements and which came to the conclusion that Judea and Samaria are not occupied territories, echoes much of what Reisner has to say.

Baker, a former legal advisor in the Foreign Ministry who also served as ambassador to Canada, heads a newly formed group of experts in international law which has already written to Kerry and EU foreign policy chief Catherine Ashton in protest of their "mistaken and misleading" positions.

Two weeks ago, Baker was in Paris, where he met with dozens of other senior jurists from across Europe who share similar views. The group includes Yaakov Neeman, the former Israeli justice minister; Baroness Ruth Deech, a member of the British House of Lords and a professor of law at Oxford; and Meir Rosenne, the former Israeli ambassador to France and the U.S.

"The Israeli government for years has refrained from waging a hasbara campaign based on advancing our rights," Baker said. "Instead, it has waged a hasbara campaign based on apologies. The right thing to do was to operate out of a sense of advancing our rights, the rights of the Jewish people as an indigenous nation in its land. The Jews are the oldest nation here, but the State of Israel rarely mentioned this. It has rarely mentioned the fact that these are territories where we have had rights from time immemorial. It has rarely mentioned international documents like the Balfour Declaration, the San Remo Declaration, the U.N. Charter, and the British Mandate as approved by the League of Nations, all of which are very relevant as they relate to our rights here."

"Most importantly, it has refrained from emphasizing that what we are dealing with is not occupation," he said.

You're "talking history." Who even takes that into account these days?

Baker: "If we refer to it, others will refer to it. It's a process that takes time."

Even the State Attorney's Office is completely disconnected from this approach whenever it argues the state's position to the High Court of Justice.

Baker: "There's a problem with the State Attorney's Office. There is a group of people there that have a very one-dimensional approach when it comes to the status of the territories and settlers."

But they are supposed to be the mouthpiece of the state.

Baker: "Not exactly. The mouthpiece of the state is the Foreign Ministry and the Prime Minister's Office. Those people implement the law. That's their job. They're not charged with waging hasbara campaigns or making policy. We agreed with the Palestinians that the fate of the territories will be determined in negotiations between us, so in the context of a permanent status deal with the Palestinians, we will have to compromise. But on the way to the compromise, for it to be better for us and for us to know that we did all we could, there is something called 'rights,' and we need to speak up about it."

"It is inconceivable that the entire world will repeat the mantra about Judea and Samaria being occupied territory when from a factual standpoint there is no legal basis for this," he said. "When Kerry claims, even before the negotiations ended, that we have no rights in territories over which negotiations are being held and where settlements are illegitimate, he is in essence adopting the Palestinian position and harming the negotiations. If the negotiations are intended to determine the fate of the settlements, then by all means. Even if you are the secretary of state, don't prejudice the negotiations by stating beforehand that they are illegitimate."

Bezalel Smotritz, a senior figure at Regavim, said that while his organization adopted the "offense-is-the-best-defense" approach in its arguments before the High Court of Justice, he and his friends realized that they were busy "putting out fires."

"The settlement enterprise in Judea and Samaria exists today within the bounds of an untenable legal situation which is the byproduct of the judicial delegitimization that has been waged for years by the left against Judea and Samaria and the settlements there," he said. "These bounds toe the line between 'illegitimate' and 'war crime.' One should add that the law that is applied today to the settlement enterprise is outdated and unsuitable for normalized living in Judea and Samaria. We are talking about the remnants of Ottoman law, British Mandatory law, Jordanian law, and Israeli defense edicts. All of this requires that we change the ongoing dialogue."

"If we seriously want to deal with the justice system as it relates to the settlements, there is no alternative but to equip ourselves with a legal bulldozer and break through," he said. "We need to establish an entirely different legal foundation which will enable the settlement enterprise to breathe and combat the legal delegitimization, and to convince the public that settlements are legitimate."

"The new book that our center published, which is already making waves throughout the halls of power, is just the tip of the iceberg," he said. "There will be more books, conferences, academic courses, scholarships, and more. One can say, 'It's too late,' and throw up his hands in despair and go home, like [what we've done] in the Negev. I'm not ready to give up, not on the Negev and not on Judea and Samaria. For years, a certain legal school has been in charge, and many academics and jurists were afraid to speak up. Now they are not alone."