News
International
Jul. 22, 2002
Israel Lawfully Belongs in Land Called the West Bank
Forum Column - By Ira L. Shafiroff - News reporters are supposed to provide listeners and readers with facts, leaving opinions to clearly labeled editorials. Yet often this is not the case, especially as applied to the Arab-Israeli conflict, for which the media use terms such as "occupation" and "occupied territories" to describe the Israeli presence in the area west of the Jordan River.
Forum Column
By Ira L. Shafiroff
News reporters are supposed to provide listeners and readers with facts, leaving opinions to clearly labeled editorials. Yet often this is not the case, especially as applied to the Arab-Israeli conflict, for which the media use terms such as "occupation" and "occupied territories" to describe the Israeli presence in the area west of the Jordan River. Such terminology is slanted against Israel and incorrect because linguistically, historically and legally Israel is not an "occupier," but the lawful owner of the land known to Jews as Judea and Samaria, commonly referred to as the West Bank.
The term "occupation" is emotionally charged and brings to mind memories of unbridled evil, as in "Nazi-occupied Europe." Emotions aside, "occupation" also connotes illegitimacy, as the U.S. Supreme Court case of Johnson v. M'Intosh 21 U.S. (8 Wheat) 543 (1823) illustrates. This case dealt with rights to disputed land - not unlike the present Middle East dilemma. In Johnson, an Indian tribe conveyed land to Johnson, while the United States subsequently conveyed the same land to M'Intosh. In resolving the question of who had better rights to the land, Chief Justice John Marshall, writing for the court, stated that the tribe's conveyance was inferior to the conveyance made by the United States because the tribe never had possession of the land, only mere "occupancy," which cannot give rise to substantial property rights. Thus, when people use the term "occupancy," they use a term that is inappropriate and inherently prejudicial.
That Israel's presence is not mere occupancy but of lawful title and possession is borne out historically and legally. The area of the land west of the Jordan River was included in the boundaries of ancient Israel and called Judea, meaning Jews, and Samaria, the capital of the 10 Northern Tribes of Israel. After a series of wars with Rome that culminated in the destruction of Israel in 135, the Romans, consistent with their custom of renaming conquered nations, designated the area as "Palestine" - land of the Philistines. Because the Jewish presence was never fully removed by the Romans or others, however, the terms "Palestine" and "Palestinian" were used to refer to Jews and Judaism. For example, Judaism's great compendium of law and analysis is called the "Palestinian Talmud." And until Israel was re-established in 1948, the term Palestinian was used only to describe the Jews of the region. Before 1948, "Palestinians" never referred to Arabs.
In 1922, England, which had acquired Palestine after World War I, split off from historic Palestine the land east of the Jordan River to create the new nation of Transjordan, meaning east of the Jordan River. In 1950, Transjordan shortened its name to Jordan when it annexed the then largely Arab-populated area west of the Jordan River.
Thus, from 1950 until 1967, Jordan owned the so-called West Bank, and could have created a "Palestinian" state, but did not. In 1967, when war with Egypt was imminent, Israel's prime minister, Levi Eshkol, pleaded with Jordan's King Hussein to stay out of the war, telling Hussein that Israel had no quarrel with Jordan. Hussein's response was to launch an air and artillery attack against Israel. A few days later, Judea and Samaria - the West Bank - were back in Jewish hands after almost 2,000 years. As Marshall wrote in Johnson v. M'Intosh, "[T]itle by conquest is acquired and maintained by force."
But do not modern principles of international law eschew nations acquiring title by conquest? Clearly, title by conquest legally cannot be sustained when one nation wages an aggressive war against another, as when Iraq tried to conquer Kuwait in 1990. But in the case of a purely defensive war, as Israel fought in 1967, the rule prohibiting title by conquest cannot stand. Indeed, to hold that a nation that is defending itself against aggression must return the spoils of war is irrational. If there is no price to be paid for aggression, aggressors will not be deterred. Thus, even under modern legal principles, Israel's claim to Judea and Samaria is as lawful as America's claim to California and Florida.
Those who report the news should do so accurately and refrain from using terms like the "Israeli occupation" and the "occupied territories." More accurate alternatives would be the "Israeli presence" and the "disputed territories." Such terminology would comport more faithfully with truth, for which reporters should strive.
Ira L. Shafiroff, a professor at Southwestern University School of Law in Los Angeles, is the author of "Every Christian's Book on Judaism: Exploring Jewish Faith and Law for a Richer Understanding of Christianity."
By Ira L. Shafiroff
News reporters are supposed to provide listeners and readers with facts, leaving opinions to clearly labeled editorials. Yet often this is not the case, especially as applied to the Arab-Israeli conflict, for which the media use terms such as "occupation" and "occupied territories" to describe the Israeli presence in the area west of the Jordan River. Such terminology is slanted against Israel and incorrect because linguistically, historically and legally Israel is not an "occupier," but the lawful owner of the land known to Jews as Judea and Samaria, commonly referred to as the West Bank.
The term "occupation" is emotionally charged and brings to mind memories of unbridled evil, as in "Nazi-occupied Europe." Emotions aside, "occupation" also connotes illegitimacy, as the U.S. Supreme Court case of Johnson v. M'Intosh 21 U.S. (8 Wheat) 543 (1823) illustrates. This case dealt with rights to disputed land - not unlike the present Middle East dilemma. In Johnson, an Indian tribe conveyed land to Johnson, while the United States subsequently conveyed the same land to M'Intosh. In resolving the question of who had better rights to the land, Chief Justice John Marshall, writing for the court, stated that the tribe's conveyance was inferior to the conveyance made by the United States because the tribe never had possession of the land, only mere "occupancy," which cannot give rise to substantial property rights. Thus, when people use the term "occupancy," they use a term that is inappropriate and inherently prejudicial.
That Israel's presence is not mere occupancy but of lawful title and possession is borne out historically and legally. The area of the land west of the Jordan River was included in the boundaries of ancient Israel and called Judea, meaning Jews, and Samaria, the capital of the 10 Northern Tribes of Israel. After a series of wars with Rome that culminated in the destruction of Israel in 135, the Romans, consistent with their custom of renaming conquered nations, designated the area as "Palestine" - land of the Philistines. Because the Jewish presence was never fully removed by the Romans or others, however, the terms "Palestine" and "Palestinian" were used to refer to Jews and Judaism. For example, Judaism's great compendium of law and analysis is called the "Palestinian Talmud." And until Israel was re-established in 1948, the term Palestinian was used only to describe the Jews of the region. Before 1948, "Palestinians" never referred to Arabs.
In 1922, England, which had acquired Palestine after World War I, split off from historic Palestine the land east of the Jordan River to create the new nation of Transjordan, meaning east of the Jordan River. In 1950, Transjordan shortened its name to Jordan when it annexed the then largely Arab-populated area west of the Jordan River.
Thus, from 1950 until 1967, Jordan owned the so-called West Bank, and could have created a "Palestinian" state, but did not. In 1967, when war with Egypt was imminent, Israel's prime minister, Levi Eshkol, pleaded with Jordan's King Hussein to stay out of the war, telling Hussein that Israel had no quarrel with Jordan. Hussein's response was to launch an air and artillery attack against Israel. A few days later, Judea and Samaria - the West Bank - were back in Jewish hands after almost 2,000 years. As Marshall wrote in Johnson v. M'Intosh, "[T]itle by conquest is acquired and maintained by force."
But do not modern principles of international law eschew nations acquiring title by conquest? Clearly, title by conquest legally cannot be sustained when one nation wages an aggressive war against another, as when Iraq tried to conquer Kuwait in 1990. But in the case of a purely defensive war, as Israel fought in 1967, the rule prohibiting title by conquest cannot stand. Indeed, to hold that a nation that is defending itself against aggression must return the spoils of war is irrational. If there is no price to be paid for aggression, aggressors will not be deterred. Thus, even under modern legal principles, Israel's claim to Judea and Samaria is as lawful as America's claim to California and Florida.
Those who report the news should do so accurately and refrain from using terms like the "Israeli occupation" and the "occupied territories." More accurate alternatives would be the "Israeli presence" and the "disputed territories." Such terminology would comport more faithfully with truth, for which reporters should strive.
Ira L. Shafiroff, a professor at Southwestern University School of Law in Los Angeles, is the author of "Every Christian's Book on Judaism: Exploring Jewish Faith and Law for a Richer Understanding of Christianity."
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