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Friday, October 22, 2004
The Law vs Aharon Barak

The Law vs Aharon Barak

According to international law Judea and Samaria are not "occupied
territories", as evidenced by several international agreements that have
recognized the Jewish People's right to possess and settle the land.

The primary international legal documents that assumed, either expressly or
implicitly, that Judea and Samaria are Jewish territories, being an
indivisible part of the Jewish National Home, are:

1. The San Remo Resolution incorporating the Smuts Resolution and the
Balfour Declaration;
2. The Mandate for Palestine;
3. The Franco-British Boundary Convention, separating Palestine (the
Jewish National Home) from Syria and Lebanon;
4. The Anglo-American Convention respecting the Mandate for Palestine.

None of our rights deriving from these international agreements has ever
been legally annulled or superceded: they all remain in force today.

According to Israeli law Judea and Samaria belong to the Jewish People and
are not "occupied territories":

1. The Area of Jurisdiction and Powers Ordinance which, in essence,
requires the immediate application of Israeli law to any area of the Land of
Israel under foreign occupation upon its being recovered by the IDF;

2. Section 11B of the Law and Administration Ordinance whose
fundamental premise is that all areas of the Land of Israel repossessed or
liberated in the Six-Day War belong to the Jewish People and can be annexed
to the State of Israel, at the discretion of the Government, by the issuance
of a simple order;

3. The Law of Return, which recognizes the right of Jews to return and
settle anywhere in the Land of Israel, a right which existed before the
establishment of the State, according to Prime Minister David Ben-Gurion.
None of these Israeli laws has been annulled; all are still in force today.

But Aharon Barak ignores both Israeli law and international law in his judgm
ent, saying that "since 1967, Israel has been holding the areas of Judea and
Samaria under belligerent occupation" and are therefore, in effect,
"occupied territories".

Indeed, that was the conclusion of Israel's most acclaimed jurist, Aharon
Barak, President of the Supreme Court, in a judgment* dealing with the
construction of Israel's security fence in Judea and Samaria.

This judgment contradicts the above four international legal documents and
three important constitutional laws of the State of Israel, which, taken
together, constitute the legal foundation of the Jewish State.

The Barak judgment completely disregards and renders valueless the above
legal documents and laws. It therefore has no sound basis in either
international law or the constitutional law of Israel. Instead of citing and
applying Jewish national rights emanating from these laws and cardinal
documents to determine the legality of the security fence Israel is
presently erecting to deter Arab terrorism, Justice Barak erroneously cites
and applies the provisions of the Fourth Hague Convention and Regulations,
as well as the Fourth Geneva Convention, which are inapplicable to the
situation determined by the Israeli laws and the instruments of
international law enumerated above.

It is a hallmark of everlasting shame that our own Supreme Court fails to
recognize our legal rights and title of sovereignty over Judea and Samaria
and believes these areas to be held under "belligerent occupation". In his
judgment, Justice Barak presents no definition of the term "occupation" and
gives no reason why Judea and Samaria should be characterized under that
term. He simply assumes that "occupation" is an undisputed "fact". His
judgment does not uphold the Rule of Law, as he so piously claims, but
actually negates it. In addition, he places the interests of the local Arab
farmers and landowners in Judea and Samaria above those of Israel's national
security and the lives of Israelis who have been wantonly murdered by Arab
terrorists. Barak's judgment thus aids and abets all of Israel's enemies and
all foreign leaders and bodies - particularly the United Nations and its
judicial organ, the International Court of Justice - who maliciously and
one-sidedly denounce Israel for occupying "Arab land" or, since 1988,
"Palestinian territory".

This shocking, illegal and exceedingly harmful judgment must not be allowed
to stand! It must be overturned by appropriate Knesset legislation.

* Concurred in by two associate justices, Eliahu Mazza and Mishael
Cheshin, and handed down on June 30, 2004 in the case of Beit Sourik Village
Council v. The Government of Israel [HCJ 2056/04].

Howard Grief, Attorney
Baruch Koroth, Att. Prof. Hillel Weiss, Att. Eliezer Dembitz, Att.
Elon Jarden, Att.
Michael Levi Matar, Att. Herb Sunshine, Att. Ephraim Ben-Haim, Amb.
(ret.)
Esther Aboutboul, Land of Israel Activist Yoel Lerner, Linguist

Office for Israeli Constitutional Law (Reg. Amuta), P.O. Box 28001,
Jerusalem 91280, grief1@012.net.il

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