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What is the Basis for the Legal Status of Israel and the Settlements?
Professor Eliav Shochetman, Hebrew University, Jerusalem
From Makor Rishon, 27th August, 1999

Anatomy of an Illusion: The Israeli - Palestinian Two-State Solution
By Eric L. Rozenman
Midstream, February-March, 2003

Short of a U.S.-led trusteeship for the territories, proposed in December by former U.S. Ambassador to Israel Martin Indyk, echoing Allied occupation of post-World War II West Germany and Japan, a peaceful Palestinian Arab democracy in the West Bank and Gaza Strip seems improbable.

Granting the Palestinian Arabs the West Bank and Gaza Strip in exchange for peace with an Israel back behind the pre-1967 "green line" possessed a certain logic. But logic was not reality. As Benny Morris, an Israeli historian sympathetic to the Arabs' sense of grievance, put it: "The logical solution is partition. Unfortunately, it's a solution that the Arabs have consistently rejected. If they continue to reject a two-state solution, one people will ultimately prevail. There will be one state here. Whoever is stronger will win."

Palestinian Arab leadership rejected partition of western Palestine unfailingly, from the 1920s to the present. Those rejections included massacres of Jews in 1921 and 1929; the "revolt" from 1936 to 1939 (rejecting inter alia the British Peel Commission two-state solution); the war against the U.N. Partition Plan in 1947 and 1948; terrorism against Israel from 1948 to 1967 (before it gained the West Bank, or Judea and Samaria, and the Gaza Strip); renewed terrorism after 1967 when a victorious Israel initially proposed to return most of the territories in exchange of peace; rejection of the 1979 autonomy provisions of the Egyptian-Israeli peace treaty; refusal to halt terrorism during the 1993-1998 Oslo process that otherwise would have yielded West Bank and Gaza self-rule after five years; and rejection of a state on 95 percent of the territories and eastern Jerusalem as well after the Camp David meeting in July 2000. Attempts to impose peace between Jews and Palestinian Arabs by confirming the former in possession of "Israel proper" and the latter in a sovereign Gaza Strip and West Bank state consistently ignore widespread Arab rejection of Israel in any boundaries.

After World War II, General Assembly Resolution 181 divided the remaining British Mandate for Palestine -- the land between the Jordan River and Mediterranean Sea -- into two statelets, one Jewish, one Arab. David Ben-Gurion and the Zionist leadership accepted partition**; the countries of the Arab League and the Arabs of Palestine refused and invaded the new Jewish state.

**David Ben-Gurion accepted UN Resolution 181 in 1947, even though it did not include the Old City of Jerusalem within the boundaries of the Jewish state. Erik Schechter. Jerusalem Post 24 April 2003 - Zionsake Editor

This refusal to concede the legitimacy of Jewish sovereignty in any form remained the dominant Arab attitude. Hence the enormity of Egyptian President Anwar Sadat's transgression -- making peace with Israel in 1979 even while insisting that Palestinian claims would have to be met -- and general Arab joy at his assassination two years later. Hence Arafat's celebration of Sadat's death then and his assertion in 2000 that he would not risk the Egyptian's fate by settling for a West Bank and Gaza Strip state without Jerusalem and without the return of Palestinian Arab refugees to Israel.

Israel's 1948 War of Independence had sparked a dual refugee problem; approximately 800,000 Jews fled Arab countries and Iran, 600,000 immigrating to Israel, and roughly 500,000 Arabs abandoned what became the Jewish state for camps in the Egyptian-occupied Gaza Strip, Jordanian-occupied West Bank, Syria, Lebanon and elsewhere.

The 1967 Six-Day War, caused by Arab rejection of an Israel without the West Bank and Gaza Strip, ended with an additional impasse -- Israeli control of those territories and eastern Jerusalem. The Arab League's Khartoum conference met Israel's

-
offer to negotiate with the "three no's": no recognition, no negotiations, no peace.
To cut this knot President Richard Nixon's secretary of state, William Rogers, suggested in 1969 that peace be reached based on the pre-'67 lines "with minor border modifications." Israel would be recognized by its neighbors and the West Bank and Gaza Strip would be granted to Jordan -- the Arab state established on three-fourths of what had been the League of Nations' British Mandate for Palestine. Jordan also would continue to oversee Jerusalem's Islamic shrines.
But King Hussein, who crushed Arafat and the PLO's "Black September" insurrection in 1970 -- killing approximately 4,000 in three weeks -- lost primacy on the West Bank and Gaza Strip. In 1974, the Arab League punished him for largely sitting out the 1973 Yom Kippur War waged by Egypt and Syria against Israel and declared the PLO "the sole, legitimate representative of the Palestinian people." Soon after the "two-state solution" in its present form took hold among self-styled progressives in Israel, Europe, and the United States. This despite Arab support limited to the occasional, unrepresentative Palestinian interlocutor like Issam Sartawi or distant non-Palestinian Arab leader like Tunisia's Habib Bourguiba.

The two-state illusion was codified in the Palestinian autonomy provisions of the 1979 Egyptian-Israeli peace treaty -- themselves understood as a preliminary stage. Yet the Palestinians under Arafat furiously rejected autonomy, not only for what it did not give them immediately, but also for what it granted Israel, recognition and legitimacy.
The answer to this question is no. Egypt did not establish sovereignty over the Gaza Strip and the sovereignty of Jordan over Judea and Samaria was recognized by only two countries, Britain and Pakistan. In fact, Jordan never held legal sovereignty over the areas of Judea and Samaria, and has relinquished any claims to sovereignty there. The status and rights of Jordan over the parts of Eretz Israel it occupied for 19 years were at most the rights of an occupying force. (See IMRA comment.)

In consideration of the fact that Israel succeeded in restoring this territory in a war of defense that had been forced upon it, while Egypt and Jordan took the same territories by means of illegal aggression in the War of Independence, Israel's rights over the areas of Judea and Samaria take priority over the rights of the hostile Arab countries. These areas, therefore - from the point of view of international law - never ceased to be part of the western Eretz Israel designated in its entirety for the establishment of a national home for the Jewish people, including of course, the right of Jews to settle in their land as established in the British Mandate.

Did the End of the British Mandate over Eretz Israel Generate Any Change in the Rights of the Jewish People Over its Land From the Point of View of International Law? The answer to this question is also no. Article 80 of the UN charter was written to defend the validity of rights determined in the Mandate even after the mandate system no longer exited. After the areas of western Eretz Israel were liberated from the Arab occupier in the Six Day War (1967), returning them to the control of the Jewish people, all the obligations according to international law remained as they were. The purpose of these areas, after all, was that they serve as the basis for the establishment of a national home for the Jewish people.

***

Regarding the Arabs in Israel's day of national mourning, in remembrance of the disaster (Naqba), which befell Arabs in the Land of Israel in the 1948 war. We should say it openly and forthrightly: The Palestinians who mourn on May 15 do not believe that the decision to prevent the carrying out of the partition of the Land of Israel was either incorrect or immoral.  What they regret is that they lost that war, not that they began it. "About the Naqba." Shlomo Avineri, Yediot Ahronot, 16 May 2003.

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Feature Question' by Rabbi David Samson at: http://israelnationalnews.com/english/newspaper/torah/ask-rabbi.htm

"Is it permissible to surrender portions of the Land of Israel to an enemy as part of a peace agreement?"

Arutz Sheva News Service, June 13, 2003: This week's 'Ask The Rabbi
THE TRUE JEWISH ROADMAP
Question:
Is it permissible to surrender portions of the Land of Israel to an enemy as part of a peace agreement?

Answer:
More than four thousand years ago, long before George Bush got to the White House, G-d gave a roadmap to the Jewish People. The borders of the Holy Land were established and sealed by the Covenant between G-d and the Children of Israel – an irrevocable constant which can never be changed. [1]

The idea of dividing the Land of Israel is not new. In the wake of the Intifada of 1936, the Royal British Committee drew up a map dividing Eretz Yisrael (the Land of Israel), called the “Partition Plan.” The Plan called for two states, Israeli and Arab, which would dwell side-by-side in peace. In response, leading rabbis at that time voiced their opinions. Chief Rabbi of Israel Yitzhak HaLevi Herzog called for a general assembly of all the leading rabbis, but it was canceled because of the reign of Arab terror that made travel to Jerusalem perilous at that time. Nonetheless, the majority of the rabbis unequivocally established that dividing the Land of Israel was prohibited by the Torah. [2]

Rabbi Yaacov Moshe Harlop, Rosh Yeshiva at the time of Mercaz HaRav in Jerusalem, stated:
“Behold, the matter is simple and clear – Heaven forbid that the Jewish People relinquish any tiny concession of any iota of land that is sanctified with the holiness of Eretz Yisrael…. There is no doubt that if the matter reaches the point where we will need sign an international agreement that includes any form of surrender of our rights to Eretz Yisrael, it is preferable for those signing to chop off their thumbs, rather than to chop up the garden of Zion.”

Rabbi Harlop continues:
“Just like a person who states that the entire Torah is from Heaven, except for one letter, he is considered a heretic, so too one who states that all of Israel belongs to the Jewish People except for one footstep, behold he is totally cut off from the holiness of the Land and he violates the soul of Israel….for Israel is undividable. A division of Eretz Yisrael will inevitably lead to war…not to mention the wrath of G-d which will be cast upon us Heaven forbid….Eretz Yisrael is for the Jewish People the Land of Life, its soul and the source of all of its vitality. Even an iota that is missing fatally weakens its life, just as when the heart is pierced. [3]
Rabbi Reuven Margoliot, author of the Talmudic work “Margoliot HaYam,” wrote:
“I agree with the opinion of absolute opposition to accepting the Partition Plan. There is a need to amass a determined opposition with all force against the Plan’s acceptance to explain to the community and to the Jews the world over that a tiny canton of Israel cannot survive.” [4]

Rabbi Tzvi Pesach Frank, Chief Rabbi of Jerusalem, stated:
“If the Jewish People have the power to acquire all of Israel as bequeathed to us from our forefathers, the matter is simple – we do not have permission to relinquish even one footstep of Land to foreigners, as it says, ‘Do not sell them the land.’ Where do we learn this? ‘Rabbi Yose bar Chanina says, Do not give them possession in the Land.’ [5] Behold it is explicit that there is a Torah prohibition forbidding the sale of even a single tree to the gentiles.” [4]

Leviticus 25:23 The land must not be sold permanently, because
the land is Mine and you are but aliens and My tenants
 [Editor]

Rabbi Yechiel Michal Tekuchinsky, author of “Luach Eretz Yisrael,” stated:
“Definitely, without a doubt, we and all of us have absolutely no permission (to sign) a peace agreement to remove any portion of the Land to others. Not only are we not allowed or permitted to relinquish, there is absolutely no value to any concession, just like it is impossible to change the borders between day and night, so it is equally impossible to change the borders of the Land as designated in the Torah, for both these matters were sealed by He who gave the Torah, the Master and Creator of the world.” [4]

Rabbi Kaniel of Haifa said:
“I believe that no one at all has any permission whatsoever, whether an individual or a group, to concede the right of the Jewish People to Eretz Yisrael in all of its boundaries. For the elected representatives of the nation are only caretakers in their responsibility to the Jews of all generations, and they do not have the right to tamper with the inheritance of the Jewish People from our forefathers.” [4]

Quoting the Talmud [6], he states:
“We learn that King Omri merited kingship because he added one city in the Land of Israel. If we truly want a state and we aspire to the crown of sovereignty and kingship, we mustn’t relinquish our existing settlements, that it should be said regarding us ‘They despised the cherished Land and did not believe His promise,’ (Psalms, 106.) Rather, we must increase the settlement of the Land.” [4]

If this is what the rabbis said when we did not have a Jewish State in Israel, how much more should we today champion our G-d given right to Eretz Yisrael and work to strengthen its settlement in all of its Biblical borders.

In the immortal words of Ecclesiastes, “A generation comes, and a generation goes, but the Land remains forever.”
[1] Genesis, 13:7; 12:16: 13:17; 16:18: 17:8. See the proclamation “L’man Daat,” by HaRav Tazvi Yehuda Kook, printed in the book “Torat Eretz Yisrael,” pg. 374.
[2] For a history of the period, see the book, “Pulmus HaHaluka B’tekufah HaMandate,” by Shmuel Dotan.
[3] “Zikof HaKooma, Daniel Sirkus, His Life and Deeds,” by Pincus Sirkus. Pg. 112. Also, Tachumin, Vol. 9, Pg. 270.
[4] Ibid.
[5] Avodah Zora, 19B. Deut. 7.
[6] Sanhedrin 120B.

Gen 13:7 So fights broke out between the herdsmen of Abram and Lot, despite the danger they all faced from the tribes of Canaanites and Perizzites present in the land. 8 Then Abram talked it over with Lot. "This fighting between our men has got to stop," he said. "We can't afford to let a rift develop between our clans. Close relatives such as we are must present a united front! 9 I'll tell you what we'll do. Take your choice of any section of the land you want, and we will separate. If you want that part over there to the east, then I'll stay here in the western section. Or, if you want the west, then I'll go over there to the east." ...11 So that is what Lot chose-the Jordan valley to the east of them. He went there with his flocks and servants, and thus he and Abram parted company. 12 For Abram stayed in the land of Canaan, ...
14 After Lot was gone, the Lord said to Abram, "Look as far as you can see in every direction, 15 for I am going to give it all to you and your descendants. 16 And I am going to give you so many descendants that, like dust, they can't be counted! 17 Hike in all directions and explore the new possessions I am giving you." TLB

Gen 17:7 And I will continue this agreement between us generation after generation, forever, for it shall be between me and your children as well. It is a contract that I shall be your God and the God of your posterity. And I will give all this land of Canaan to you and them, forever. And I will be your God. TLB--

Rabbi David Samson is one of the leading English-speaking Torah scholars in the Religious-Zionist movement in Israel. He has co-authored four books on the writings of Rabbi Avraham Yitzchak Hacohen Kook and Rabbi Tzvi Yehuda Kook available on-line at RabbiKookBooks.com. Rabbi Samson learned for twelve years under the tutelage of Rabbi Tzvi Yehuda Kook. He served as Rabbi of the Kehillat Dati Leumi Synagogue in Har Nof, Jerusalem, and teaches Jewish Studies at Mercaz HaRav Yeshiva Institutions.
Tzvi Fishman was a successful Hollywood screenwriter before making Aliyah to Israel in 1984. He has co-authored several Torah works with Rabbi David Samson and written several books on Jewish/Israel topics. His two most recent books Days of Mashiach and Tuvia In the Promised Land are available on-line at: RabbiKookBooks.com.
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On that day the LORD made a covenant with Abram and said, "To your descendants I give this land, from the river of Egypt to the great river, the Euphrates-- the land of the Kenites, Kenizzites, Kadmonites, Hittites, Perizzites, Rephaites, Amorites, Canaanites, Girgashites and Jebusites." Genesis 15:18-21.

Greater Israel - I'm giving you a BROAD country