When U.S. Ambassador David Friedman expressed support for Israel retaining part of Judea and Samaria in any future peace agreement, his remarks were greeted with scorn from Haaretz and others. Anyone familiar with the history of the Israeli/Arab conflict might conclude that the Arabs won all of the wars in which they fought, and therefore could dictate the terms of the peace. A logical question might be asked: By what legal right are Arabs permitted to live in Gaza and Judea and Samaria, but the Jews are restricted to only certain portions of these areas? The Mandate for Palestine conferred the right of the Jews to settle anywhere between the Jordan River and the Mediterranean Sea. This entitlement has not been changed in international law.
At the San Remo Conference in San Remo, Italy, in April 1920, the Supreme Council of the Principal Allied Powers, Britain, France, Italy and Japan, met to define the precise boundaries of the lands they had conquered at the end of the First World War. As part of a broad peace agreement, the Council decided that the Balfour Declaration of November 2, 1917, would be incorporated in The Treaty of Peace with Turkey.
When the Arabs brought their case before the United Nations Special Committee on Palestine (UNSCOP), the committee established on May 15, 1947, to investigate the source of the conflict in Palestine and to offer a solution. The committee concluded, “There would seem to be no grounds for questioning the validity of the Mandate for the reason advanced by the Arab States.” Though the Arabs viewed themselves as having a “natural” right to Palestine, the UNSCOP report asserted that the “Arabs have never established a government there and…that not since 63 B.C., when Pompey stormed Jerusalem, has Palestine been an independent State.”
Eugene V. Rostow, a dean of Yale Law School, who served as undersecretary of state for political affairs between 1966 and 1969, added that “the [British] mandate implicitly denies Arab claims to national political rights in the area in favor of the Jews; the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to the land. Lord Curzon, who was then the British Foreign Minister, made this reading of the mandate explicit. There remains simply the theory that the Arab inhabitants of the West Bank and the Gaza Strip have an inherent ‘natural law’ claim to the area.”
Hebrew University historian Jacob Talmon observed that at the end of the First and Second World Wars, the French were not concerned how the Germans might regard them. In these conflicts, the Germans attacked the French and each time the French defeated them. It would not have been surprising for the French to regard the Germans as an eternal threat. Under the circumstances, “Could anyone have imagined suggesting to the French that they surrender Alsace-Lorraine or make any security concessions so the Germans might accept them?” Talmon asked.
Because Israel was attacked, Talmon noted, one might have assumed that the world would not want to reward the aggressor for their unprovoked attack by asking Israel to give back the land Jordan lost in war. Yet on November 22, 1967, the UN Security Council adopted Resolution 242 outlining the guidelines to achieve a “peaceful and accepted settlement.” As Eugene V. Rostow, who helped produce Resolution 242 pointed out, Israel is allowed to administer the territories it occupied in 1967 until “a just and lasting peace in the Middle East” is achieved. “When such a peace is made, Israel is obligated to withdraw its armed forces ‘from territories’ it occupied during the Six-Day War—not from ‘the’ territories nor from ‘all’ the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.”
Alan Dershowitz confirmed that “Friedman is right…in these two respects: (1) Israel has no right to retain all of the West Bank, if its enemies recognize its right to live within secure borders; (2) Israel has ‘the right to retain some’ of these territories. The specifics—the amount and location—are left to negotiation between the parties.”
Talmon asked if there had ever been another situation in history where “the victor has been expected to withdraw from conquered territory before the defeated party agreed to discuss peace terms, where the vanquished had openly avowed he would never make peace under any circumstances, would never recognize the right of the victor to exist… but would continue to pursue his mission to destroy and annihilate the victor until he succeeded”?
For years, the Israelis have been making endless concessions without receiving anything substantial in return. When the Arabs acknowledge the existence of the Jewish state, when they are prepared to accommodate the Israelis instead of expecting the Israelis to accommodate them, we will know that they are serious about peace.
By Alex Grobman, Ph.D.
Dr. Grobman is a Hebrew University-trained historian, senior resident scholar at the John C. Danforth Society and member of the Council of Scholars for Peace in the Middle East.
