Important Articles Analyzing the Application of International Law to Israel, Gaza, and Lebanon

Far too often, people who lack the requisite knowledge to speak intelligently about both international history and international law nevertheless feel free to offer uninformed and inaccurate commentary about Israel's actions in Gaza, Lebanon, and elsewhere. UK Lawyers for Israel (UKLFI) is an association of lawyers advancing legal education about Israel and providing legal support to victims of antisemitism. The UKLFI website includes a wealth of detailed information about what international law stipulates regarding Israel, Gaza, Lebanon, and the Mideast in general. 

A good starting point for anyone who wishes to understand the legal status of Israel's borders and the territory commonly referred to as the "West Bank" but properly called Judea and Samaria is Outline of the History and Status of Judea and Samaria (the West Bank). It is important to understand how mendacious it is for anyone to make the assertion "Israeli settlements are the primary obstacle to peace"; the settlements are not even illegal, let alone an obstacle to peace! It should be noted that the above article--while excellent in most respects--glosses over the dubious legality (at best) of Great Britain's decision to create Transjordan (which became the Hashemite Kingdom of Jordan) out of the eastern 80% of the Palestine Mandate, a topic that is discussed in an Arizona Law Review article by Abraham Bell and Eugene Kontorovich (see below).

In the wake of Hamas' October 7, 2023 mass casualty terrorist attack against Israel, media outlets and even the UN uncritically accepted as factual the unverified Gaza casualty numbers released by the Hamas-controlled Gazan health ministry, but UKLFI did a detailed analysis demonstrating that the widely accepted numbers are likely wildly exaggerated numbers: Palestinian casualty figures fabricated (August 12, 2024). Here is the summary of what UKLFI found:

UKLFI CT estimates that by 29 February 2024, about 19,000 Palestinians had been killed in the Gaza Strip, of which 9,000 were combatants and 10,000 were civilians; and that by 31 July 2024, 27,000 Palestinians had been killed of which 12,000 were combatants and 15,000 were civilians. On these estimates, the civilian: combatant ratio in the current war in the Gaza Strip was 1.1:1 in the period to 29 February 2024 and at 1.3:1 in the period to 31 July 2024.

Although every civilian death is a tragedy, UKLFI CT points out that these ratios are an order of magnitude lower than the average civilian: combatant casualty ratio in urban armed conflict worldwide in 2021 (over 8:1) and half of the ratio in the Mosul battle of 2016-2017 by Iraqi and allied forces against ISIS (2.5:1), despite the exceptional difficulty of operating in the Gaza Strip.

Jonathan Turner, Executive Director of UKLFI CT, commented: "It might have been justified for media organisations to avoid coverage of any of the figures on the ground that they are unreliable. However, since the Gaza Ministries' figures for the total numbers of Palestinians allegedly killed have been repeatedly stated in media coverage, it is unbalanced and misleading not to state with similar regularity the figures provided by the IDF of the Palestinian combatants killed. This unbalanced and misleading media coverage is likely to be a major cause of rising antisemitism in the UK and around the world.

A must-read article from a different source than UKLFI is PALESTINE, UTI POSSIDETIS JURIS, AND THE BORDERS OF ISRAEL by Abraham Bell and Eugene Kontorovich. Bell and Kontorovich explain that the international law concept uti possidetis juris (a Latin phrase meaning "as [you] possess under law") "is widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries."

They then describe how this is relevant to any discussion of Israel's current borders:

Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights).

Uti possidetis juris is the international law concept that was applied to determine the borders of the states created in the wake of the dissolution of the Soviet Union, Czechoslovakia, and Yugoslavia.

As mentioned above, Bell and Kontorovich point out that a strong argument can be made that the creation of Transjordan (which later became the Hashemite Kingdom of Jordan) from the eastern portion of the Palestine Mandate was illegal (footnotes omitted):

While the British were clearly intent on establishing Transjordan as a separate, Hashemite-ruled state, the Mandate did not authorize the removal of any territory from the Mandate of Palestine; it only allowed for the nonapplication of certain provisions. Thus, while it allowed for the separate administration of eastern Palestine, it did not allow for partition; rather, Article 5 stated that "no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the government of any Foreign Power." The French Mandate for Syria and the Lebanon contained an identical Article 5, but also had clear language providing for the establishment of two distinct states in the Mandated area, making clear that Syria and the Lebanon were viewed as two Mandates. Moreover, Article 5 was not included among the provisions of the Palestine Mandate suspended by Britain pursuant to Article 25. Zionist groups pushed this argument quite strongly in the 1930s and 1940s, and insisted on independence for the complete Palestine, including Transjordan. And the British seemed to be aware of the force of this argument, formally insisting throughout the period that the territories were under a single Mandate. 

Having withheld the applicability of certain provisions of the Mandate in 1922 and granting Jordan autonomy in 1928, Britain went the rest of the way in 1946, recognizing the independence of the Hashemite Kingdom of Jordan, and the termination of the Palestine Mandate there, in 1946. At this point, arguments about the violation of the Mandate could no longer be glossed over. For the last two years of the Palestine Mandate (until May 1948), it did not include Transjordan. Upon the independence of Transjordan, the administrative boundary between it and Palestine became the new international boundary, consistent with the doctrine of uti possidetis juris. This is despite very strong legal arguments against the severance of the territory from Palestine. Thus, while Jewish nationalist parties continued to claim Transjordan throughout the 1940s and 1950s, and Transjordan (and later Jordan) claimed legal rights to territory in Palestine that it captured during its 1948 invasion, neither set of claims received any serious recognition. Indeed, the Jewish authorities of Palestine recognized Transjordan's borders despite any scruple they may have had about its formation.

The entire 60 page Arizona Law Review article is worth reading/studying carefully by anyone who wishes to avoid sounding foolish when talking about Israel, Jordan, the Palestine Mandate, and how international borders are properly determined.

Further Reading:

Nasrallah's Victims Rejoice at His Demise, While Western Media Outlets Display Their Distorted Moral Compasses (October 1, 2024)

Anti-Zionism is Antisemitism (September 18, 2024)

Anti-Zionism is Indistinguishable From Antisemitism Because Israel is the Jewish Homeland (January 5, 2024)

Israel, Hamas, and the Islamic Concepts Dar al-Islam Versus Dar al-harb (October 11, 2023)

Israel's Ongoing Oslo Accords Folly (September 28, 2023)

Who Are the Invaders, and Who are the Invaded? An Analysis of Inversions of Truth (January 12, 2022)

The Fear and Shame at the Heart of Antisemitism and Anti-Zionism (February 17, 2021)

A Masterful Review of Robert Spencer's Book "The Palestinian Delusion"

Dr. Anjuli Pandavar's detailed review of Robert Spencer's 2019 book The Palestinian Delusion: The Catastrophic History of the Middle East Peace Process should be required reading for politicians, media members, college students, and anyone who publicly opines about the Middle East. Contrary to the Orwellian-style cancel culture that has become prevalent in the media and on U.S. college campuses, it is not "Islamophobic" to state the truth about the religious theology underpinning the actions of Iran and her terrorist proxies Hamas and Hezbollah. Hamas' Charter is easy to find online, and it describes in great detail Hamas' inspirations and goals. It is just as easy to find Hezbollah's foundational documents and underlying ideological imperatives, here quoted in pertinent part and expressing the same goals that Hamas has (emphasis added):

Our primary assumption in our fight against Israel states that the Zionist entity is aggressive from its inception, and built on lands wrested from their owners, at the expense of the rights of the Muslim people. Therefore our struggle will end only when this entity is obliterated. We recognize no treaty with it, no ceasefire, and no peace agreements, whether separate or consolidated. We vigorously condemn all plans for negotiation with Israel, and regard all negotiators as enemies, for the reason that such negotiation is nothing but the recognition of the legitimacy of the Zionist occupation of Palestine.

After reading the primary source material, it is clear that one has to be either woefully uninformed or antisemitic to pressure Israel to negotiate a ceasefire with an enemy whose sworn purpose is to destroy Israel and who explicitly refuses to recognize any treaty or cease fire with Israel. The reader may accordingly draw appropriate conclusions about President Biden, Vice President Harris, various international leaders, the college professors/college students who chant "Free Palestine," and many media outlets that distort historical truth to promote a preferred narrative.

Here is an excerpt from Dr. Pandavar's review: 

The "delusion" in the title refers to multiple delusions: that of a Palestinian nation; that the "Arab-Israeli conflict" is a simple struggle over land; that the so-called "peace process" is a series of negotiations; that Judea and Samaria — what the Jordanians dubbed "The West Bank" during their occupation — and Gaza (and the Golan Heights) are "occupied territories"; and that the Muslim Arabs are the wronged party. Along the way, many lesser and shorter-lived delusions are referred to, both directly and indirectly...

The United Nations and its agencies come in for a well-deserved pummelling in The Palestinian Delusion, for they are shown to be little more than instruments of jihad, right down to the inculcation of Jew-hatred in the Muslim children in UN schools, and those children's early indoctrination into aspiring to be jihad mass murderers. A child in a UN school shares his endearing aspirations: "Stabbing and running over Jews brings dignity to the Palestinians. I'm going to run them over and stab them with knives." If The Palestinian Delusion has one loud and clear message, it is Get real!

The blatant, relentless and ritualistic discrimination against and legal abuse of Israel at the United Nations are also thoroughly treated, not least the outrageous "inadmissibility of acquisition of territory by war," contrived especially for Israel after it drove Jordanian troops back out of Judea and Samaria, Egyptian troops back out of Gaza (and all the way across the Suez Canal) and Syrian troops off the Golan Heights, after these countries' aggressive war of 1967, intent on wiping out Israel.

It has been a basic principle ever since men made war, that if an aggressor loses a war, that aggressor loses such territory as the victim had managed to conquer from it. The book makes clear that it is the first time ever that it is demanded of a country attacked that it returns territory conquered from aggressors in self-defence. Of course, should Israel accept this ridiculous and suicidal principle, any of its many hostile neighbours will have every incentive to try again next year in the full knowledge that they will never lose territory, and the old Islamic pattern of annual jihad war will be restored. The Palestinian Delusion strengthens the view that the United Nations has outlived its original purpose. That is putting it mildly.

Pressuring Israel to agree to a cease fire that her enemies have no intention of honoring is a recipe for disaster and suffering, not a blueprint for peace. What is the solution? The solution is not a reality that Leftists want to face, but one that Israel's enemies fear: Israel fighting until complete victory is obtained, thus denying her enemies the opportunity to keep contesting limited liability wars in which Arab/Muslim conquests are permanent but Israeli victories are temporary advances immediately wiped out by international pressure or voluntary Israeli concessions. Israel has tried "Land for Peace" since the 1978 Camp David Accords, and the result has been that Israel gave up a lot of land but obtained very little peace.

Dr. Pandavar concludes:

The key to success of Israeli military force is permanent insecurity for Arab Muslims, the only condition that Islam recognises as a valid excuse for suspending jihad. The surest way of accomplishing such permanent insecurity is by Arab Muslims permanently losing territory every time they attack Israel. The entire point of jihad is the violent subjugation of the entire world "until all religion is for Allah." Every part of the earth that is now subjugated, or was once subjugated, is "Muslim land" and the greatest humiliation for those on jihad is to lose Muslim land. Humiliation equals defeat. This is why those advocating for Israel annexing and Jews closely settling Gaza and Judea and Samaria are correct.

Leftists will scream that this smacks of racism, nationalism, or some other "ism" that they have determined to be inimical to human progress--and Islamists will applaud the bleatings of their useful idiots--but decades of Mideast history have illustrated the key to success, if Israel is brave enough to take it. It is important to understand and acknowledge the extent to which the concepts of Dar al-Islam and Dar al-harb (see the fourth article in Further Reading for more details) drive the actions of Israel's enemies. "Land for Peace," "Two State Solution," and "Free Palestine" are propaganda slogans that have no relevance regarding the Mideast, because the root cause of the conflict is the fundamental Islamic precept that non-Muslims must be subjugated, driven out, or killed. That is a brutal reality that many people refuse to face, but refusing to face reality does not change reality.

Further Reading: 

Professor Louis Rene Beres Lucidly Explains Why Israel's Justified Military Responses Are Not Terrorism Even if Civilians Are Killed (September 21, 2024)

Anti-Zionism is Antisemitism (September 18, 2024)

Anti-Zionism is Indistinguishable From Antisemitism Because Israel is the Jewish Homeland (January 5, 2024)

Israel, Hamas, and the Islamic Concepts Dar al-Islam Versus Dar al-harb (October 11, 2023)

The Implications of Hamas' Surprise Attack Against Israel (October 7, 2023) 

Israel's Ongoing Oslo Accords Folly (September 28, 2023)

The Fear and Shame at the Heart of Antisemitism and Anti-Zionism (February 17, 2021)

Ariel Sharon's Legacy is Tainted by his Abandonment of Fundamental Historical and Legal Principles

Ariel Sharon, who passed away on January 11, 2014 after spending eight years in a coma, was a bold and imaginative military leader who played an essential role in Israel's victories in the Six Day War and the Yom Kippur War. During most of his subsequent political career, Sharon strongly supported Israel's right--and need--to maintain control over Judea, Samaria and Gaza, three areas that not only are part of Biblical Israel (and the modern Palestine Mandate) but also essential buffer zones against aggression by Israel's Arab neighbors. Sharon was considered, by allies and enemies alike, as one of the founding fathers of the settler movement; he made his name as a proud advocate of the right of the Jewish people to return to their historic homeland in its entirety and his legacy is largely based on his ideology regarding Judea, Samaria and Gaza. Sharon permanently tarnished that legacy when, as Prime Minister, he betrayed the principles he had spent a lifetime upholding.

Prior to becoming Prime Minister, Sharon understood that language is important and he consistently said that Israel had "liberated" Judea, Samaria and Gaza, even though many people incorrectly insist on calling those territories "occupied." According to international law, Judea, Samaria and Gaza are unallocated portions of the Palestine Mandate. Those who refer to Israel as an "illegal occupier" are misinterpreting and/or misunderstanding international law.

Israel has a strong claim to Judea, Samaria and Gaza based on a host of international legal documents, including the Palestine Mandate and the Balfour Declaration, but even if one disregards those historical/legal precedents it is important to remember that Jordan and Egypt used Judea/Samaria and Gaza respectively as staging grounds for wars of aggression against Israel (and, prior to those wars, those countries used those territories as staging grounds for terrorist attacks against Israel).

Israel's policies of appeasement--and the attitude of large segments of the international political and media communities--make no sense, because instead of Israel begging that the Arab countries recognize her right to exist (a right that every other country in the world correctly takes for granted) in exchange for receiving land that had been used as staging grounds for anti-Israel aggression Israel should have been asking for reparations as the victim of unprovoked attacks. If Canada attacked the northern United States and the United States responded by capturing Quebec one can rest assured that the United States would not return Quebec in exchange for Canadian recognition of the United States' right to exist--and even that analogy does not go far enough, because in that scenario the United States' only claim to Quebec would be that Quebec had been used as a staging ground for an aggressive war, while in contrast Israel's valid claim to Judea, Samaria and Gaza predates the repeated Arab attempts to annihilate the Jewish State.

If international law is interpreted any other way then that would mean that Country A could attack Country B, lose land during the subsequent war and then insist that Country B either return that land or offer reparations. Furthermore, Jordan--which occupied Judea and Samaria from 1948 and 1967--was never recognized internationally as the rightful owner of those areas and Egypt's claim to Gaza is dubious as well. The "illegal occupier" of Judea and Samaria was Jordan, not Israel! In 1970, three years after the Six Day War, former State Department Legal Advisor Stephen Schwebel explained the legal status of Judea and Samaria: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title."

Israel's intimate ties to Judea, Samaria and Gaza are not just legal formalities; the rich Jewish history associated with Judea, Samaria and Gaza predates the creation of both Christianity and Islam. It is also worth mentioning that not only has there never been an Arab country called "Palestine" but that the p sound does not even exist in Arabic; the word Palestine has been co-opted and corrupted in recent decades by Israel's enemies but it originated as a Latin term used by the Roman occupiers to rename Judea, the ancient Jewish state that had provided particularly tough resistance to Roman conquest. The Arabic word Filastin is simply a transliteration of the Latin term and the assertion that there is a distinctive Palestinian Arab people separate from the larger Arab community is a late 20th century propaganda phenomenon--arguably the most successful propaganda campaign ever, completely turning historical truth upside down (the Jerusalem Post was originally called the Palestine Post but just a few decades later Israel's enemies have convinced most of the world that there is such a thing as a separate Palestinian Arab nation, which historically makes about as much sense as saying that there is a separate Michigan nation that is entitled to exist independently of the United States).

Sharon's military achievements and his bold advocacy for Israel's rights made him a hero in the eyes of Israrel's supporters and a villain in the eyes of Israel's enemies--but after Sharon became Israel's Prime Minister in 2001 he made a shocking and abrupt ideological transformation, unilaterally withdrawing from Gaza and four communities in Samaria and making plans for more unilateral withdrawals from Judea and Samaria; if he had not been incapacitated by a stroke in 2006 there is no telling how much more damage Sharon might have done to Israel's security and how many thousands of Jewish residents he may have uprooted from their homes. It is a bitter historical irony that Sharon, the general who helped save Israel from defeat in several wars, became a Prime Minister who inflicted ethnic cleansing on his own people, forcibly removing Jewish families from their homes.

Yitzhak Shamir was a man of principle, in stark contrast to Israeli Prime Ministers Shimon Peres, Ehud Olmert and Benjamin Netanyahu. Ariel Sharon will always be a seminal figure in Israeli and Jewish history but his ultimate legacy is that he betrayed his most cherished principles and he betrayed the voters who elected him because they believed that he would uphold those very principles.

Israel Desperately Needs a Prime Minister with Menachem Begin's Courage and Foresight

It has been so long since Israel had a Prime Minister who possessed courage and a sense of history that it is easy to forget what it sounds like when an Israeli leader actually speaks truth to power. Benjamin Netanyahu knows the truth and he used to speak it when he represented Israel at the United Nations but as soon as he enters the Prime Minister's office--first from 1996-99, then from 2009 to the present--he loses his mind and his backbone.

Menachem Begin survived the Holocaust and he fought in Israel's War of Independence. Those experiences reinforced what he had always known to be true: the Jewish people must return to their homeland and reestablish an independent state where Jewish culture can thrive and where Jewish people will be safe from persecution and free to live openly as Jews, the same basic rights that every other nation expects to enjoy.

Michael Freund's column about the most recent misguided U.S. Mideast "peace plan" recalls Begin's response to a similarly misguided plan three decades ago. Begin wrote a personal letter to U.S. President Ronald Reagan that included these powerful words:

What some call the "West Bank," Mr. President, is Judea and Samaria; and this simple historic truth will never change. There are cynics who deride history. They may continue their derision as they wish, but I will stand by the truth. And the truth is that millennia ago there was a Jewish kingdom of Judea and Samaria where our kings knelt to God, where our prophets brought forth the vision of eternal peace, where we developed a rather rich civilization which we took with us, in our hearts and in our minds, on our long global trek for over 18 centuries; and, with it, we came back home.

Israel will not survive unless her citizens elect a Prime Minister who speaks the truth--and acts on it--the way that Menachem Begin did. In 1981, Begin's administration bravely destroyed Saddam Hussein's Osirak nuclear weapons facility as Begin vowed that he "will not be the man in whose time there will be a second Holocaust." No one else had the courage and the foresight to do what Begin did--and Begin was roundly criticized at the time, in what William Safire described as "an orgy of hypocrisy," by nations and commentators who had been silent as France, Italy and other countries conspired with Iraq to develop a nuclear weapons program whose primary target was the Jewish State. Netanyahu is not built from the same moral fiber as Begin, which means that it is unlikely that under Netanyahu's watch Israel will have the necessary resolve to confront Iran, whose leaders have clearly and repeatedly stated their goal to destroy Israel. Israel cannot expect to be saved by anyone else--and if Israel does not act then the Iranians will develop a nuclear weapon and deploy it against Israel.