The subject of the rights under international law of the Jewish People and the State of Israel in Judea and Samaria involves a complex and extensive web of historical, legal, military, and political issues.
The Jewish People have historical claims in Judea and Samaria
Israel’s claims to sovereignty in Judea and Samaria did not originate with it attaining control of the area following the 1967 Six-Day War.
Israel’s rights are based on the indigenous and historical claims of the Jewish People in the area as a whole, virtually from time immemorial.
Israel’s international legal rights were acknowledged in 1917 by the Balfour Declaration’s promise to the Jews to reestablish their historical national home in Palestine. These rights are based on clear historical, archeological and biblical evidence.
The Balfour Declaration was subsequently recognized internationally and encapsulated into international law through a series of international instruments commencing with the 1920 San Remo Declaration by the Supreme Council of the Principal Allied Powers, followed by the 1922 League of Nations Mandate for Palestine.
The continued validity of these foundational legal rights was also assured under Article 80 of the United Nations Charter.
These areas cannot formally be defined as occupied territories
During the 1967 Six-Day War, in which Egypt, Syria and Jordan invaded Israel in a combined military action, Israel attained control of the areas of Gaza, the Golan Heights and Judea and Samaria, and established a military administration to govern the local population pursuant to the accepted norms and requirements of international law.
U.N. Security Council resolution 242 (1967) called for a negotiated solution to the conflict.
Since neither Jordan nor Egypt had acquired recognized sovereign powers in these areas, they could not be formally defined as occupied territories, and Israel committed itself to act in accordance with the relevant norms of international law, pending a negotiated settlement. This was done without officially acknowledging the formal applicability of the Fourth Geneva Convention to the areas.
The Oslo Accords established an agreed interim territorial arrangement
The 1993-1995 Oslo Accords between Israel and the PLO, signed and witnessed by leading powers and endorsed by the United Nations, established a unique and agreed interim territorial arrangement to govern the West Bank and Gaza areas, between a Palestinian Authority, established for that purpose, and Israel.
In the accords, it was agreed that issues such as settlements, borders, Jerusalem, refugees, water and security would be negotiated in permanent status negotiations.
Pending completion of such negotiations, it was agreed that the areas would be divided such that a P.A. would govern the major towns and villages (areas A and B), and Israel would govern the area in which Israeli military installations and settlements were located (area C).
The Oslo Accords did not specify the outcome of the permanent status negotiations—whether one state, two states, a federation, confederation, or otherwise. Any agreed solution will only emanate from negotiations between the Palestinian leadership and Israel.
This cannot be imposed unilaterally by U.N. resolutions, or by any international forum or individual leaders. States and organizations advocating a “two-state solution” are, in fact, preempting the outcome of the negotiations that have yet to take place.
Persistent Palestinian refusal to negotiate leaves Israel no option but to act unilaterally to protect its rights
While Israel’s prior, well-established and documented international, legal, political and indigenous rights to sovereignty over the areas are clear, Israel nevertheless acknowledged in the Oslo Accords Palestinian rights in the areas, and agreed to negotiate with them the permanent status of the areas.
Persistent Palestinian refusal to return to negotiations and their rejection of peace plans to settle the dispute cannot and should not serve to veto a settlement of the dispute.
Such ongoing refusal and rejection undermines the peace process, invalidates the Oslo Accords and leaves Israel no option but to act unilaterally in order to protect its vital security and other interests and historical rights.
Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.
This article was first published by the Jerusalem Center for Public Affairs.