The Future of Israel's Borders: International Law and Islamic Law. Part II

This is where the plan for extending Israeli law over more territory becomes simpler to resolve both legally and morally. However many times the Palestinian Arabs have been offered a state, they have chosen to turn it down, rejecting generous peace offers. They have preferred to use terrorism and three wars launched from Gaza in pursuit of their fantasy of destroying Israel. By 2017, they had rejected no fewer than seven peace offers, and this year Mahmoud Abbas turned down the new US-Israeli peace plan.

Fortunately, if Israel were to extend Israeli law to more land, the move could present a great opportunity to end the conflict. The decisive end by Israel to a Palestinian fantasy that should never have been humoured in the first place might finally enable Palestinian leaders finally to start their citizens on a constructive — rather than a destructive — path.

In part one, we identified several ways in which international bodies, states, and individuals interpret the US-Israeli plan for Israel to extend Israeli law in the ancient Jewish homeland of Judaea and Samaria. There is widespread, and misguided, agreement that such a move would be illegal under international law, which regards occupation and “annexation of territory” in a negative sense.

However, as we have seen, much of this interpretation is based on confusion about the history of the region, the origins of the state of Israel, and the ongoing Palestinian rejection of a state for their own people. It is also a contradiction between Western-inspired international law and earlier Islamic law.

Let us start with a look at the original 1922 League of Nations Mandate for Palestine, a territory designed to be administered by Great Britain until it could emerge as an independent state. Even a brief glance at a map of the territory shows that the Mandate made the whole of Palestine, including Gaza and what is now the West Bank with Judea and Samaria, the region designated for the future Jewish homeland. Writing in Israel Hayom recently, Dr. Dore Gold, former Israeli ambassador to the United Nations, argues that this original designation means that it is not appropriate to term Israel’s coming move to place the Jordan Valley of the West Bank an “annexation”. Aggressive annexation of territory through war is, he agrees, unacceptable and illegal — but Israel only entered the West Bank in 1967 during a defensive war.

This is a reasonable view, but sadly it ignores earlier developments. In 1922, Britain implemented Article 25 of the Palestine Mandate to create an Arab state (Transjordan, now Jordan) east of the Jordan River. This shrank the Jewish homeland, but had no impact on the West Bank or Gaza. Within the remaining British-administered part Palestine, conflict arose between Jews and Arabs, making administration increasingly difficult. The situation changed dramatically following the Second World War and the Holocaust. It was no longer morally acceptable to deny Jewish survivors or others from the Diaspora the right to create a state within which Jews could defend themselves from aggression from whatever quarter.

With the end of the war, the League of Nations was replaced by the United Nations. And in November 1947, the UN General Assembly passed Resolution 181, through which the remaining Palestine Mandate territory was to be partitioned into a Jewish and Arab state (with Jerusalem made an international zone). The plan was to resolve the ongoing antagonism between the two sides, and in the first instance the Jews, motivated by Zionist hopes, accepted the partition and prepared to set up their state once British forces left. The Arabs, however, rejected the plan because they insisted on driving the Jews, as supposed interlopers — after 3000 years in the area — out of the territory.

This is where the plan for extending Israeli law over more territory becomes simpler to resolve both legally and morally. However many times the Palestinian Arabs have been offered a state, they have chosen to turn it down, rejecting generous peace offers. They have preferred to use terrorism and three wars launched from Gaza in pursuit of their fantasy of destroying the much more powerful state of Israel. By 2017, they had rejected no fewer than seven peace offers, and this year Mahmoud Abbas turned down the new US-Israeli peace plan.

As there is no Palestinian state in the West Bank (and only a terrorist pseudo-state in Gaza), Israeli settlements and annexation cannot be classed as an aggressive invasion and occupation of another state. By refusing to make peace and establish a state of their own — or even to sit down at a table to negotiate — the Palestinians only hurt themselves. It is as if they expect all the land under dispute to be held for them in perpetuity, presumably until such time as they might feel like discussing it or agreeing to a proposal. They have so far never submitted a counteroffer to any proposal – just a decades-long cascade of “No”s in an echo of the wider Khartoum Declaration after the 1967 Six Day War. The annexation move proposed by Israel simply cannot be regarded as illegal under international law.

If Palestinian nationalism is a flimsy basis for a future state at peace with its neighbours, an even greater cause for animosity towards Israel has existed even from before the beginning of the conflict. This is the disruption between international law and Islamic law.

Islamic law does not just govern the individual lives of Muslims in the way the Christian or Jewish law (halakha) does. Islam is not simply a religion. It is also a political system, and it has laws for the governance of cities, provinces and nations. One feature of this governance is the law of waqf. A waqf is anything that has been given by members of the Muslim community to remain in perpetuity for religious purposes. It is not private property, but is dedicated to remain under Islamic use: a school, a fountain, a mosque, a library: whatever is given by its donor for that exclusive use. In the present context, it refers to any territory once conquered by or converted to Islam and ruled by a Muslim monarch or government — such as previously by the Ottoman Empire. No such territory should be allowed to pass into profane, secular, Christian (such as al Andalus, consisting of southern Spain) or, in this case, Jewish hands.

That is why not just Palestinians but many other Muslims consider the creation of Israel an illegal act that must be reversed even if the destruction of Israel would contravene international legal standards.

The invention of a secular Palestinian nationalism has only served to mask this underlying concept. Evidence that it still applies, however, exists in mosque sermons calling for jihad, pronouncements of the Muslim Brotherhood, and, above all, the 1988 Charter of Hamas, an offshoot of the Muslim Brotherhood. A former Egyptian diplomat, Mohamed Galal Mostafa, has argued that, taken all in all, religious doctrine stands at the core of the wider hatred for Israel.

Here is Article 11 of the Hamas Charter on the centrality of waqf for the “liberation” of Palestine and the end of Israel:

"The Islamic Resistance Movement believes that the land of Palestine is an Islamic Waqf consecrated for future Moslem generations until Judgement Day. It, or any part of it, should not be squandered: it, or any part of it, should not be given up. Neither a single Arab country nor all Arab countries, neither any king or president, nor all the kings and presidents, neither any organization nor all of them, be they Palestinian or Arab, possess the right to do that. Palestine is an Islamic Waqf land consecrated for Moslem generations until Judgement Day. This being so, who could claim to have the right to represent Moslem generations till Judgement Day?
"This is the law governing the land of Palestine in the Islamic Sharia (law) and the same goes for any land the Moslems have conquered by force, because during the times of (Islamic) conquests, the Moslems consecrated these lands to Moslem generations till the Day of Judgement."

From this alone it should be clear that whatever peace deals and calls for mutual toleration may be made under the banner of Western diplomacy and the application of international law, Palestinian resistance cannot buckle. It would look as if the leadership were selling out God and his law, be considered grounds for treason, and require the punishment for treason: death. Here is part of Article 13 of the Hamas Charter:

"Initiatives, and so-called peaceful solutions and international conferences, are in contradiction to the principles of the Islamic Resistance Movement. Abusing any part of Palestine is abuse directed against part of religion. Nationalism of the Islamic Resistance Movement is part of its religion. Its members have been fed on that. For the sake of hoisting the banner of Allah over their homeland they fight."

If Israel implements an annexation, a violent Palestinian reaction could take the form of a third intifada and, less likely, an attack from the Gaza Strip, which had historically belonged to Egypt, on Israel’s south, from Hamas, which anyhow is always looking for ways to destroy Israel.

Fortunately, if Israel were to extend Israeli law over more land, the move could present an opportunity to end the conflict. Nave Dromi has recently argued that the decisive end by Israel to a Palestinian fantasy that should never have been humoured in the first place, might finally enable Palestinian leaders finally to start their citizens on a constructive — rather than a destructive — path.

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