Judea and Samaria Under International Law


david-storobinBy David Storobin

Despite what liberal journalists may lead us to believe, Middle East history did not begin during the six days of the 1967 war, and starting that late distorts one’s understanding of the Arab-Israeli conflict. In determining what is the law governing Judea and Samaria, let us start from the beginning.

Following the conquest of Judea, the Roman gave it a new name, Palestine, after the ancient Greek people who previously battled the Hebrews. The re-naming of Judea was meant as a historical stab at the Jews and did not mean that there were any Palestinian people at the time. Over the next 1,900 years, only colonial powers controlled Palestine and no Palestinian nation ever came into existence. As time went on, small pockets of Arabs moved into the area, but at the start of the 19th century, the population west of the Jordan River stood at less than 1% of its current levels, though it began skyrocketing as a result of both Jewish and Arab immigration beginning late in the 19th century. One of these immigrants was the Egyptian-born Yasser Arafat.

Hajj Amin al-Husseini giving a Nazi salutes to Muslim SS volunteers in 1943.


At the end of World War I, imperial powers agreed to surrender their colonies in a process governed by the League of Nations. The 1922 League of Nations Mandate for Palestine declared that “the Mandate had as a primary objective the implementation of the ‘Balfour Declaration’ issued by the British Government in 1917, expressing support for ‘the establishment in Palestine of a national home for the Jewish people’.”

It called for the “establishment in Palestine of a national home for the Jewish people,” recognized the “historical connection of the Jewish people with Palestine” and entrusted Great Britain with establishing a “Zionist organization” that shall be recognized as a “public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home ….”

Shortly after the Mandate was issued, Nazi-sympathizer Hajj Amin al-Husseini, a relative and mentor of the then-young Yasser Arafat, became the Mufti of Jerusalem and used this position to establish himself as a leader of the local Arabs. In the 1930s, before the Third Reich decided to engage in the Final Solution, al-Husseini repeatedly urged Adolf Hitler to murder the Jews. In 1943, upon visiting Auschwitz, al-Husseini complained to German authorities that Jews are not being murdered quickly enough. He even drew up plans for the extermination of all the Jews in the Middle East in the expectation of the German victory in the region. He also recruited European Muslims into the Nazi SS, including the 13th “Hanjar” division and the 21st “Skandenber” division, as well as several other units that fought for the Nazi Germany.

It was this man who set about to create a previously non-existent Palestinian national identity. In 1936, he organized a three-year assault on the Jews of Palestine. In 1941, he left Palestine to organize a pro-Hitler revolution in Iraq, murdering most of the Iraqi royal family in the process. After spending the rest of the war years in Germany, he was arrested for war crimes, but escaped from prison and returned to the Middle East.

At the same time that al-Husseini was inciting Palestinian Arabs, the British violated the Mandate and put an end to nearly all legal Jewish immigration to Palestine, even for Holocaust refugees trying to escape Nazi Germany. This was in direct violation of Article 6 of the Mandate that ordered Britain to “facilitate Jewish immigration” and “settlement by Jews on the land.”

To try to win favor with the Arabs, the British and various international commissions issued plans to divide Palestine. This, too, was in violation of the Mandate, which clearly stated that “no Palestine territory shall be ceded.” The mandate was very clear in stating that all the territory west of Jordan, which includes the West Bank, shall be part of the Jewish National Home.


Jews being expelled by the Arabs from East Jerusalem in 1948.


The United Nations General Assembly resolution 181 is often cited as a legal basis for the creation of the Jewish state. Yet, the partition plan was nothing more than a recommendation because the U.N. General Assembly – unlike the U.N. Security Council – has no right to pass any legally-binding resolutions.

Because Great Britain agreed to withdraw from Palestine subsequent to this resolution, Jewish leaders had the operational ability to declare independence. However, their right to sovereignty in Palestine is based on the 1922 League of Nations Mandate. In fact, long before May 1948, Palestinian Jews were being admitted into international institutions.

In 1929, their soccer team joined FIFA, the world federation of soccer, and played in officially recognized games long before 1948. In 1933, they were allowed to participate in Olympic events, though the Jews of Palestine didn’t participate until after WWII because they, for obvious reasons, chose to boycott the 1936 Games that were held in Nazi Germany, and then the 1940 and 1944 Olympic Games were canceled due to World War II.

The U.N. Security Council does have the power to pass binding law in some circumstances, but it too has no right to divide the territory that the Mandate specifically said should not be divided. The Security Council cannot pass a law taking away territory from Israel anymore than it can pass a law taking away territory from Sweden or Brazil.


Thus, when the Security Council passed resolution 242 on November 22, 1967, it was passed under Chapter 6, making it a non-binding recommendation. Only Chapter 7 resolutions are binding law, and no such resolution was ever passed during this or any other session that dealt with any territory mandated to the Jews by the League of Nations.

Resolution 242 and the 1973 resolution 338 which affirmed the original resolution is worth examining, however, because it is often cited as the basis for Arab-Israeli peace negotiations.

The most hotly debated point prior to the passage of resolution 242 was obviously withdrawal from the territories Israel took over in June 1967. This withdrawal was not to be unilateral, but was linked to the “termination of all claims or states of belligerency” and the recognition of “every State in the area.”

More importantly, the Security Council specifically rejected the wording “withdrawal from all the territories” as well as “withdrawal from all territories” and even “withdrawal from the territories.” The agreed upon language was “withdrawal from territories” and was seen by all sides to mean that Israel need not withdraw from all the real estate it took over in 1967.

Lord Caradon, the British U.N. ambassador in 1967 who actually drafted resolution 242, said: “It would have been wrong to demand that Israel return to its positions of June 4, 1967 because those positions were undesirable and artificial.”

Similarly, the U.S. Ambassador to the United Nations (and the former U.S. Supreme Court Justice) Arthur Goldberg explained: “The notable omissions which were not accidental in regard to withdrawal are the words ‘the’ or ‘all’ and ‘the June 5, 1967 lines’ . . . the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.” The Ambassador added that Israel’s return of all territories is “incompatible” with resolution 242.


Israeli soldiers reach the holy Western Wall during the 1967 war.

Rather than calling for Israel to withdraw from all the territories it acquire in 1967, the resolution calls for Israel to withdraw to “secure” borders which the American ambassador explained to mean “territorial adjustments in their peace settlement encompassing less than a complete withdrawal of Israeli forces from occupied territories, inasmuch as Israel’s prior frontiers had proved to be notably insecure.”

The Soviet UN Ambassador Vasily Kuznetsov, who was viewed as representing the Arab position in the negotiations, agreed that the adoption of Resolution 242 meant that “Israel [had] the right to establish new boundaries and to withdraw its troops only as far as the lines which it judges convenient.”

It is for this reason that immediately prior to the passage of resolution 242, Arab representatives declared that Palestinian Arabs would lose all rights to independence if this language of the resolution was passed. But pass it did.

When Israel later signed the Camp David Peace Accords returning the Sinai Peninsula to Egypt, it gave back all the territory that was not given to it by the League of Nations Mandate. No further demands can be made upon Israel under international law and, in fact, no further demands were made by resolution 242.

The law is very clear, but over the years, Palestinian public relations operatives and their liberal supporters were able to create another narrative by simply repeating that the Jewish State is in violation of the law until less than knowledgeable people began to believe the claim. Whatever the government in Jerusalem chooses to do, it is important to remember that all the land west of Jordan is Israeli land under international law and Jews are neither occupiers, nor illegal settlers.

If Israel chooses to build communities in Judea and Samaria, it will merely be fulfilling the only binding international law that was ever passed that deals with this piece of real estate, and this law calls for facilitating “settlement by Jews on the land.”

David Storobin a former New York State Senator representing the 27th district that encompassed Flatbush, Midwood, Borough Park, Brighton Beach, Sheepshead Bay, Homecrest, Bensonhurst, Gravesend, Madison, Marine Park, Bergen Beach and Mill Basin.

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  1. “The mandate was very clear in stating that all the territory west of Jordan, which includes the West Bank, shall be part of the Jewish National Home.”

    Sorry, but the Mandate didn’t say that at all. It simply says that a Jewish National Home would be “in” Palestine. Storobin even quotes that language in the article.

    “Israel [had] the right to establish new boundaries and to withdraw its troops only as far as the lines which it judges convenient.”

    And no government of Israel has established any boundaries beyond the 1949 Armistice line other than to include East Jerusalem.

    One must wonder what a candidate for City Council is doing making foreign policy statements. Foreign policy is reserved exclusively to the federal government by the US Constitution. I presume Mr. Storobin understands that.