Chapter12


LEGALITY OVER THE "GREEN LINE"

It was in March 2007 that I received an e-mail from the Jewish Community of Hebron under the heading “An international students’ competition – The Occupation of Hebron: Legal Aspects.” In this e-mail they enclosed a document which called for international competition dealing with “the Occupation of Hebron,” marking “the 40th anniversary of the Israeli occupation of the ‘palestinian’ territories.” The e-mail suggested that the recipients may wish to “enter the competition and write about the Arab occupation of Eretz Yisrael in general, and more specifically, Hebron.” They further suggested that the recipients write about the Muslims preventing Jews and Christians from entering the Cave of Machpelah for 700 years, the destruction of both the Jewish cemetery in Hebron and the Avraham Avinu Synagogue, and the 1929 massacre.

The enclosed document stated that this competition was sponsored by “the International Law Division at the Law School, the College of Management Academic Studies in Israel, in cooperation with the Association for Civil Rights in Israel and the International Review of the Red Cross.” This international competition was “open to all law students world-wide” and focused on “legal aspects of the 40 year old Israeli occupation of Hebron.” After a few lines of the well-known clichés of “500 settlers” residing in the “home to around 150,000 Palestinians” and the “Israeli policies” to “‘de-Palestinization’ of the area, ” the document concluded, “The (il)legality of theses policies is the broad subject of the competition.” [Brackets around (il) in the original].

I immediately decided to enter this competition. Initially I intended the call my article just “The Legality of Jewish Settlement in Hebron” but also include a large amount of background material. However, after I had written most of the draft of the paper, I decided that it would be more appropriate to entitle it “Israel’s Title to and the Legality of Jewish Settlement in Hebron.”

I had in the past written a number of papers and booklets from where I could extract information and sources. The main one was a paper I had written and had had published in the early 1970s. It was on the International Legal status of Judea and Samaria (popularly called by the world the “West Bank”) and Gaza. I carefully went over this paper of mine, rechecking all the references, removing those which came from just newspapers and making some corrections. Some of the references were only secondary sources and I went to the Jewish National Library in Jerusalem to look up the primary sources. After locating some further primary material, including some judgments from the International Court of Justice, which had been scanned on to the Internet, I was able to write the first part of my paper. This dealt with the international legal status of Judea, Samaria and Gaza, and showed that Israel had a greater right to these areas than any other country in the world and furthermore, that the entire country of (Trans)jordan is to this very day, of doubtful legality.

I should stress that throughout preparing this paper, I made it an important aim to do the maximum to locate the primary sources and not rely on secondary ones. Many of the primary sources were from debates and resolutions of the United Nations General Assembly and Security Council and also of the League of Nations. On the balcony of the General Reading Room at the Jewish National Library, they have all these in bound volumes and, there is also a room adjoining this Reading Room with additional material. I found a lot of the primary material that I required for this paper in these volumes, which I accordingly photocopied. I also found a lot of scanned material on United Nations debates and resolutions on the Internet.

It has almost reached the state where every school boy will tell you that “Resolution 242” states that Israel must withdraw to the pre Six Day War lines. The only problem is that this is incorrect and I devoted several pages in my paper showing this distortion of Resolution 242. To do this, I quoted numerous authoritative sources, which included the statements of those who phrased this resolution. I furthermore brought the opinions of experts and international law rulings to resolve the apparent contradiction in this resolution between the decisive English text and the translated French text,; it is not imaginable the trouble that this little French word “des” caused! The meaning of the words “secure and recognized boundaries” in this Resolution also merited a detailed discussion. For an actual map of “secure” borders, I quoted from the memorandum (marked “secret” and later disclosed by the “Wall Street Journal”) of the Chairman of the American Joint Chiefs of Staff, Earle Wheeler, which gave the “minimum territory needed by Israel for defensive purposes” and this included most of Judea and Samaria. Every President of the United States needs to be shown this map by the Israeli government, but I doubt if an Israeli Prime Minister ever will!

Someone recently wrote that one of the “Seven Wonders of the Modern World” was how the Arabs had over the course of just a few years created a history of a “Palestinian people” which extended back for thousands of years! One section of my paper was to show using various sources including a British Government handbook, the Esco Report and the statements of several prominent Arabs, that all this was a complete fabrication.

One of these Arab sources was an interview given in the Dutch paper “Trouw” by an Arab spokesman where he freely admitted that the existence of a separate “Palestinian identity is there only for tactical reasons”. Someone had scanned the original article in Dutch and put it on the Internet. I managed to download it and in a footnote in my paper, quoted in the original Dutch, the appropriate part of the text. Unfortunately, a few of the letters in the Dutch text were not to clear and not knowing any Dutch was not sure whether I had transcribed them accurately. However in the Jewish National Library there is a Dutch-English dictionary and going over the text word by word I was able to make any necessary corrections.

I discovered that two Arab professors in their evidence before the “Anglo-American Committee of Inquiry” held in 1946 had testified that “there is no such thing as Palestine in history, absolutely not”. I saw from the Jewish National Library catalogue that they had on microfiche the evidence given before this Committee. I ordered it from their depositary and went through all the microfiches but I could not find the evidence of these two professors. Further research led me to learn that they had given their evidence in Washington, but the microfiches only contained the evidence taken in Jerusalem. However I remembered that many years before, (when researching a completely different subject), I had found the transcripts of the evidence given to this Committee in Washington, at the Central Zionist Archives. I therefore went there and with no difficult found what I required.

One should always do one’s best and try and verify that what one reads in a secondary source is in fact accurate. I had an example of this regarding an article I had read, in which it claimed that an Arab giving evidence before the Peel Commission in 1936 had said “There is no such country as Palestine.” However I went through his evidence carefully several times and could find no evidence of such a statement. In fact from the content of his evidence, I could see no possibility of this Arab saying this.

Since the subject of this competition was on (in the sponsors own words) “occupied Hebron” and on Jewish settlement there, I wanted to show that Jewish settlement there did not begin in 1967, but extended back many thousands of years, and what is more, well before there were any Moslems in the world. I found the Hebrew book “Sefer Hevron” very valuable for this and I even brought down something found in the Cairo Genizah that even during part of the period when the Crusaders ruled over Eretz Yisrael and there were barely any Jews there, there were indeed some Jews living in Hebron.

I also required sources which specifically spoke of the buildings in Hebron which had been built by Jews and lived in by them till the massacres of 1929. On this, in addition to “Sefer Hevron” and the “Encyclopedia Judaica”, I found two sources. One was a book originally written in Russian by a young Russian immigrant, Yehuda Novoselsky, who had lived in Kiryat Arba. Sadly, he died soon afterwards. Later this book was translated into English. The other source, I found on the Internet, had been put out by the International Sephardic Leadership Council.

For the legality of Jewish settlement in Hebron (and indeed anywhere else in Judea and Samaria) I used three tracks, two of which I discussed in detail. The first was disproving the oft repeated and thus accepted statement that such Jewish settlement contravened the Fourth Geneva Convention. For this, I found a lot of information on the Internet. In addition to the text of this Geneva Convention, there was the official commentary on it by the International Committee of the Red Cross. This commentary gives sources for its information, but these sources do not appear on the Internet. However what I did find on the Internet was that a Sue Zago who worked in a University Law Library in Boston had several years earlier put in a request on the Internet for someone to supply these sources. I telephoned Sue Zago and she said that she now had the document I required and I should send her an e-mail requesting the particular part I required. She answered that she had only had the French text – everything the Red Cross writes is in both English and French – and she sent me by post what I requested, together with a note “I do hope that this proves to be helpful.” Unfortunately, however I found that it did not add any information for my research.

The second track was, that Jews still had the right under the terms of the Palestine Mandate to settle anywhere in Judea and Samaria. The main proponent putting forward this had been the former American Assistant Under-Secretary of State, Professor Eugene Rostow. In August 1991, which was the time when the then President George Bush had tried to link loan guarantees to not settling Russian Olim in Judea and Samaria, I had written a “Letter to the Editor” which had appeared in the “Jerusalem Post”, quoting Rostow, and thus what Bush was doing was illegal and he should therefore be brought on trial!

The third track which I only briefly mentioned was the general one, in which excluding any specific group from settling in a particular place in the world was apartheid and contravened an international convention.

After carefully re-checking all the references, I wrote up my paper and prepared to send it up for this competition. The rules gave an upper limit of 10,000 words for the paper. I realised that I was getting close to this number. Fortunately one can from the computer get a word count and I kept referring to it. It was not clear whether this upper limit was with or without the footnotes. I conveniently took the view that the count could be made without the footnotes!

The competition was open to “all law students world wide”. It did not say that they had to be registered at a Law School. Despite this, I did not want to give any false impression of my status and so on 17 June 2007, I sent an accompanying letter in which I clearly wrote “I wish to point out that I am not a ‘law student’ at any Law School or University. However, I consider myself a ‘law student’ in the sense that I study various branches of law, in particular Jewish Religious Law, privately and not for any examination or qualification, and have written and published a fair number of papers on the subject.”

At the same time, I sent by e-mail a copy to David Wilder, the English spokesman for the Hebron Jewish Community, who had originally suggested that we submit a paper for this competition. Together with my paper I sent him a letter, “As suggested in your e-mail of 14 March, I have researched and written a paper for the competition on ‘40 years occupation of Hebron’. If you wish to use it in its ENTIRETY, you are welcome to do so. If however you wish to use extracts or make any changes, please be in contact with me first.” I made this proviso, since I know from experience that extracts or changes made without the knowledge of the author can alter the whole meaning and objective of any paper. I also sent a copy of the paper to the lawyer and former Knesset member Elyakim Haetzni, who I know is very interested in this subject.

On 26 June, I received an e-mail from the organizers of this competition. “Without any reference to the title or content of the paper which you have submitted to our review, I'm afraid I have to inform you that it will not be possible to accept your application for participation in our international competition as is. Submissions to the competition are accepted on condition that we are informed of the name of the academic institution in which the student is conducting her/his studies, and at which stage of their studies they are currently in. This information needs to be supported with corresponding documentation. In order for your submission to eligible (sic), we need you to provide us with a certification from a University in which you are currently a student (also stating the program of your studies) … Scholars and other people who do not qualify as Law Students and therefore are not able to participate in our competition are kindly suggested to turn their suggested papers to other legal publications.”

I must admit that I was not surprised at this answer. As I have already said. I behaved completely honestly and did not want to say who I was not, or to be the “ghost-writer” for some law student. However it would have been interesting for them to have received a paper such as this from a student at an acceptable “academic institution”!

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