The borders of Palestine

This is a preliminary version of an academic article which, by examining the history of the Israel-Palestine conflict and associated documents, shows that Palestine is entitled to territorial compensation for territory seized by Israel in the 1948-49 war.


It is generally accepted by the Palestinian leadership, the international community, and liberal Zionists that the territorial parameters of a two-state solution to the Israel-Palestine conflict are already determined. They would leave Israel within its current borders: Palestine would consist of the 22 percent of Mandatory Palestine outside those borders, namely the West Bank and Gaza. There would be some mutually agreed adjustments to the West Bank border.

The population of Israel within its current borders is approximately 8 million: the Palestinian Arab population outside those borders, in the West Bank and Gaza, plus stateless refugees with a right to return, is around 9 million. It is hard to see how squeezing this entire population into 22 percent of its historic homeland could possibly result in a just and lasting peace, or a viable Palestinian state.

The generally accepted belief about the final territorial settlement is based on two fundamental misconceptions:

  • First, that Israel has never defined its borders;
  • Second, that UNSC Resolution 242 proposed the 1949 Armistice Line, or Green Line, as Israel’s permanent border.

After correcting these misconceptions, this article concludes that Palestine is entitled to compensation for territory it lost to Israel in the 1948-49 war. It is suggested that the most suitable form of compensation would be a transfer of land in the southern Negev (Naqab) from Israeli sovereignty to Palestinian sovereignty.

ISRAEL DECLARES ITS BORDERS

The Zionist leadership met in Tel Aviv from May 12, 1948 to May 14 to prepare the declaration of an independent Jewish state in Palestine, to take effect on May 14 at midnight, when the British Mandate over Palestine would come to an end. There are two English-language sources for the story of that meeting. The book “Three Days” by Zeev Sharef, head of administration for the Provisional Government, was published in 1959;i a more recent account is an article by Shelley Kleiman on the Israel Government website.ii

The National Administration, the embryonic Provisional Government under the leadership of David Ben-Gurion as Prime Minister and Defense Minister met on Wednesday, May 12. They considered it very important to have the support of the United States, and their first step was to telephone Chaim Weizmann, the Chairman of the World Zionist Organization, asking him to write a personal letter to President Truman appealing to him to recognize the new state.iii

They went on the consider a previously prepared draft declaration. There was a heated discussion about the borders. Some said it would be “impolitic” to proclaim the State without announcing its borders, presumably because Israel would lose the support of other states if it did not adopt the borders specified in the UN General Assembly Resolution 181 of November 29, 1947.iv

The resolution had recommended a Plan of Partition with Economic Union (the Plan) dividing Palestine into three entities: a Jewish state, an Arab state and the City of Jerusalem, the latter under international control. The Plan specified the territorial division between the three entities. The Zionist leadership had publicly accepted the Plan, and when the Arabs of Palestine rejected it, and it became clear that it could not be implemented, they announced that they would unilaterally declare the Jewish state immediately on termination of the Mandate.

Ben-Gurion argued strongly that they should say nothing about the borders, because it was his intention to capture territory outside the Plan borders and include it in the State.

Sharef explains Ben-Gurion’s point of view thus: “it was important that, if the state were to be brought into existence by force of arms, then its putative frontiers would have to be determined by the same means.” Kleiman quotes his actual words:

We accepted the UN Resolution, but the Arabs did not. They are preparing to make war on us. If we defeat them and capture western Galilee or territory on both sides of the road to Jerusalem, these areas will become part of the state. Why should we obligate ourselves to accept boundaries that in any case the Arabs don’t accept?

Expressed as a rhetorical question like this, it may seem reasonable to Zionists. But the essence of his argument is this: because the Arabs did not accept that the Zionists should take half of Palestine, the Zionists were entitled to take more than half. Let us call this the Ben-Gurion Doctrine. It defies logic and ignores justice.

The mention of western Galilee was not a randomly chosen example. As Ben-Gurion was speaking the Zionist forces were already taking control of that area, and also the port of Jaffa. Both were allocated to the Arab state in the Plan.

In a vote, Ben-Gurion’s view was accepted by a narrow majority (5 to 4, with four members absent). We do not know if the four voting against were opposing his expansionist policy, or only the failure to mention the partition borders in the Declaration.

The absence of a border definition in the declaration of a new state is not necessarily significant, since a declaration is a once-only event, whereas there is always the possibility that borders will be changed in the future. But the objectors to Ben-Gurion’s view were right: there comes a point when a state has to let other states know where it thinks its borders are. We will see that, for Israel, this point came sooner rather than later.

A revised draft was prepared by a subcommittee under Moshe Shertok, the Foreign Minister, and considered by the National Administration on Thursday, May 13. A new Article gave greater emphasis to UN Resolution 181.

Ben-Gurion went home that evening and rewrote the Declaration, simplifying the language and shortening the document. The National Administration came to his house on the morning of Friday May 14 and approved his version.

It was then considered by the National Council, consisting of 37 representatives of political parties and Zionist organizations. There was a further discussion over borders. Some members, committed to the idea of a Jewish state on both sides of the Jordan, insisted that the words “within its historic borders” be included. They also objected to the mention of an economic union, because this implied the acceptance of the idea of an Arab state alongside Israel, to which they had always been opposed.

Ben-Gurion persuaded the meeting that it was too late to make further changes, and his version was finally accepted in a unanimous vote. In the afternoon Ben-Gurion gave a ceremonial reading of the Declaration of the Establishment of the State of Israelv.

Although the Declaration does not mention Palestine, partition, borders or an Arab state, it places the partition Resolution at the heart of the document:

On the 29th November, 1947 the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable.

[WE] BY VIRTUE OF OUR NATURAL AND HISTORIC RIGHT AND ON THE STRENGTH OF THE RESOLUTION OF THE UNITED NATIONS GENERAL ASSEMBLY, HEREBY DECLARE THE ESTABLISHMENT OF A JEWISH STATE IN ERETZ-ISRAEL, TO BE KNOWN AS THE STATE OF ISRAEL.

THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947, and will take steps to bring about the economic union of the whole of Eretz-Israel.vi

Ben-Gurion had produced a Declaration based firmly on the Plan of Partition with Economic Union, going further than previous drafts by expressly committing Israel to implement it.

Since the essence of the Plan was the division of territory between the Jewish and Arab states, Israel’s Declaration implicitly defines the borders of Israel to be those specified in the Plan.

Recognition by the United States

On the same day, May 14, the border definition was made explicit in Washington. Eliahu Epstein, representative of the Jewish Agency in the USA, described the events of that day in a telegram he sent later to Shertok, Foreign Minister of the Provisional Government.vii

In the morning Epstein received a call from Clark Clifford, a close adviser to President Truman, saying that Truman would recognize the new Jewish state if Epstein could submit a formal request by noon (6 p.m in Tel Aviv). There was also a second call, from Loy Henderson at the State Department, asking about the borders: Epstein replied that they were in accordance with the partition plan.

Clifford helped the Jewish Agency lawyer David Ginsburg to draft a suitable letter to Truman requesting recognition of the new Jewish State, and Epstein signed it. In his memoirs, Clifford says that he explicitly told Epstein thatit was particularly important to claim nothing beyond the boundaries outlined in the UN Resolution.viii

Epstein later gave more details about his conversation with Loy Henderson. Henderson had asked whether the Jewish state wanted any territory other than was granted in the UN resolution. Epstein replied “No, and any territory taken until peace was achieved would be returned to the Arab state”.ix

It is clear that Truman’s administration was unwilling to recognize Israel unless it defined its borders according to the partition plan.

Epstein made this definition in the first sentence of the letter he wrote to President Truman requesting recognition (emphasis added):

My dear Mr. President: I have the honor to notify you that the State of Israel has been proclaimed as an independent republic within the frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947, and that a provisional government has been charged to assume the rights and duties of government for preserving law and order within the boundaries of Israel.x

Epstein was not able to consult with the leadership in Tel Aviv before submitting his letter, but both had made compatible decisions: in Tel Aviv to base the Declaration on the partition Resolution; in Washington to define borders according to the Plan.

Ben-Gurion’s attempt to leave Israel’s borders undefined had failed at the first hurdle. The Provisional Government had no alternative but to accept the partition borders. For example, on May 22, 1948 a letter to the Security Council said (emphasis added):

The Provisional Government of Israel exercises control over the entire area of the Jewish State as defined in the Resolution of the General Assembly of the 29th November, 1947. In addition, the Provisional Government exercises control over the city of Jaffa; north-western Galilee, including Acre, Zib, Base, and the Jewish settlements up to the Lebanese frontier; a strip of territory alongside the road from Hilda to Jerusalem; almost all of new Jerusalem; and of the Jewish quarter within the walls of the Old City of Jerusalem. The above areas, outside the territory of the State of Israel, are under the control of the military authorities of the State of Israel, who are strictly adhering to international regulations in this regard.xi

The text of Epstein’s letter, together with Truman’s response recognizing Israel, was released to the press by the White House in Washington on May 15, 1948.xii There was no doubt in the 1948-49 period about the location of Israel’s borders. Israel had publicly acknowledged the existence of these borders. Both the USSR and Australia mentioned the partition Resolution in their recognition statements.xiii,xiv All the states recognizing Israel knew the extent of the territory it was claiming.

Israel a sovereign state

Israel’s Declaration is based upon a fundamental falsehood: that the international community had recognized the right of foreign Jews to migrate to Palestine and establish there a Jewish State. The Balfour Declaration does not say anything about such a right;xv neither does the San Remo Resolution,xvi nor the League of Nations Mandate for Palestine,xvii nor UN General Assembly Resolution 181.xviii

In particular, the words of the Declaration are intended to suggest that the creation of Israel was authorized by Resolution 181. This is not correct.xix The UN does not have authority under its Charter to divide states against the will of a majority of their inhabitants. The partition plan was a recommendation only. The Plan envisaged a process, starting at the end of the Mandate, which would lead to the establishment of two states in a series of parallel stages, under the supervision of an international Palestine Commission. Israel was created by the decision of the Zionist leadership to preempt the process envisaged in the Plan, and to declare the State of Israel immediately on termination of the Mandate. The UN promptly stood down the Commission.xx

Nor can the creation of the State of Israel be justified by a Jewish right to self-determination. At the time of the announcement of the partition plan, there were approximately equal numbers of Jews and non-Jews residing in the area allocated to the Jewish State in the partition plan.xxi Many of the Jews were first generation immigrants. In no way could the Zionist leadership be said to represent the residents of the territory which they were declaring to be independent from the rest of Palestine.

Although Israel’s Declaration was unauthorized and unjustified, denied the Arab Palestinians their right to self determination, and was preceded by serious war crimes, the new State of Israel satisfied the requirements of the Montevideo Convention.xxii It had a population, defined borders, government, and capacity to enter into relations with other states. It was recognized by the USA on May 14, 1948; this was followed by recognition by the Soviet Union on May 17, and subsequently by many other states.We may feel those states were wrong to recognize Israel, but they did, and Israel exists as a recognized sovereign state. The borders defined by Israel at that time are its sovereign borders: the borders within which Israel claimed and exercised sovereign authority when it was recognized by other states.

Israel’s deception

If Israel had not specified borders at the time of its Declaration, it would not have been a state under the Montevideo Convention. The idea that a state could exist without defined borders is actually nonsensical. Suppose there were no defined border between Canada and the USA. People would not know in which country they were living; what was their citizenship; whose laws they needed to obey; what currency they could use. It would be chaos.

This is exactly the situation Ben-Gurion wanted to create by his intention not to define Israel’s borders. If there was no defined border between Israel and the rest of Palestine, then all of Palestine could be considered open territory, available for conquest.

Recognition having been achieved on May 14, and despite the assurances given to the US State Department by Epstein, on May 20 the Provisional Government decided that “Israel would not respect the partition lines”.xxiii Effectively, President Truman had been deceived into recognizing Israel, though no blame attaches to Epstein who clearly was unaware of the change in policy in Tel Aviv.

Since then, successive Israeli governments have tried, very successfully, to convince the Israeli people and the rest of the world that the border definition never happened. Their motive is clear: they want to hide the fact that in 1948 they placed limits on the area of their sovereignty.

A good example appears in the book, already mentioned, “Three Days” by Zeev Sharif. He describes the content of Epstein’s letter to Truman, quotes the first part of the first sentence: “the State of Israel has been proclaimed as an independent republic” but omits the second part “within the frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947.xxiv

Such suppression of information is a common Zionist technique. As far as I can determine there is not a single Israel Government or Zionist website which mentions Epstein’s letter when talking about the foundation of the State of Israel and Truman’s recognition. Only one Zionist website, the Jewish Virtual Library, gives the text of the letter, and this is indexed only as a “Letter from Provisional Government to USA” and nowhere are its contents or significance discussed.xxv Epstein’s telegram to Shertok did not appear on the internet until 2012, as an unsearchable PDF file. The only searchable text versions on the internet are in my own writings.

Zionist propaganda has somehow managed to ensure that the statement “Israel has never defined its borders” has become one of those things that “everyone knows”. “Everyone” includes some well-known names:

the historian Avi Shlaim, Professor at Oxford University, said in an interview thatthe 1949 Armistice Lines are the only internationally recognized borders that Israel ever had”;xxvi

John V. Whitbeck, an international lawyer and Palestinian adviser, has said that “Israel has never defined its own borders, an act which would necessarily place limits on them”;xxvii

John B. Judis, political historian, in his recent book Genesis about Truman, Zionism, and the creation of Israel, discusses the events of May 14, 1948 in Washington. He mentions that Clifford worked with Ginsburg and Epstein on the letter asking for recognition, but shows no knowledge of its content and gives no reference to its text. All he says about the borders is that “Ben-Gurion, who hoped to enlarge the territory that the UN had allotted, did not specify borders for the new state.xxviii

Fortunately, the UN understands what happened. The UN booklet The Question of Palestine and the United Nations says “On May 14, 1948 the Jewish Agency proclaimed the establishment of the State of Israel on the territory allotted to it by the partition plan”.xxix

Palestine and the stolen territory

Israel’s creation and recognition as a sovereign state effectively partitioned the land of former Mandatory Palestine into two territories: the State of Israel (55 percent), and the remainder of Palestine outside the sovereign borders of Israel, corresponding to the area of the Arab state in the partition plan (45 percent). Much of Palestine’s population had become refugees, and it had no government because the Mandate had ended, and there was nothing to replace it. It became a non-self-governing territory.

The Jewish National Home policy of the British Mandate had made it impossible for the Palestinians to exercise their right of self-determination in Mandatory Palestine. But, because Israel’s border definition limited the sovereign extent of the State of Israel to that specified for the Jewish state in the partition plan, it also defined the borders of the non-self-governing territory of Palestine, creating the possibility that the Palestinians could exercise that right.

Borders can be changed, but a state can only legitimately acquire territory from a neighbor by legal annexation, that is, by agreement, and with a referendum of the population. Obtaining territory by war violates fundamental principles of international law. Nevertheless, this is what Israel did.

On the night of May 14-15 forces of the Arab states entered Palestine, and the civil war already raging between Jews and Arabs became a war between Israel and the Arab states.

In his report to the Provisional Government on June 3, Ben-Gurion made clear his aggressive intentions towards territory outside Israel’s borders:

We have conquered several important districts outside those [partition plan] boundaries… our forces are striking at the Arab Triangle and they stand at the gates of Jenin. Tulkarm is under attack and Nablus quivers with fear… to the greatest possible extent, we will remain constantly on the offensive, which will not be confined to the borders of the Jewish State.xxx

His statement confirms both the existence of the Israel’s borders, and his intention to capture territory outside them.

As the war progressed Israel continued to gain territory outside its borders, until the fighting stopped with the Armistices of 1949. These left Israel in control of all the territory of former Mandatory Palestine, except for the Gaza Strip which was under Egyptian military occupation, and the area now known as the West Bank which was under Jordanian military occupation. (In 1950 the West Bank was annexed to Jordan but, at the insistence of the Arab League, was held in trust for the Palestinians.xxxi)

In the captured territory between the partition lines and the armistice lines (see map), Israel applied Israeli law rather than a military occupation under the laws of war, making the territory in effect (de facto) part of Israel.xxxii The armistice lines, or Green Line, therefore became the de facto border of Israel.

This was not a legal annexation, as the armistice agreements themselves make clear:the Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary.xxxiii Since Israel has no intention of returning this territory, it is correctly called stolen territory.

The stolen territory amounts to 23 percent of Mandatory Palestine, about half of the non-self-governing territory of Palestine. It includes the towns of Acre, Ashkelon, Jaffa, Nazareth, Ramle, Beersheba, and Lydda, all having being allocated to the Arab state in the partition Plan as being major Arab population centers.

Under Chapter XI of the UN Charter a “sacred trust” is automatically created when a state, in this case Israel, administers a non-self-governing territory, in this case parts of Palestine. Under this trust the responsibility of Israel in the stolen territory was to recognize that “the interests of the inhabitants of these territories are paramount” and to help them “develop self-government and free political institutions”: in other words, to help the Palestinian people achieve their right of self-determination in their own land.xxxiv

Israel seriously violated this sacred trust. Making the territory part of Israel prevented its people from developing free political institutions and self-government. The refusal to allow Palestinian refugees to return, the destruction of their villages, and their replacement by immigrant Jews, put the interests of the Palestinian people below those of Jewish immigrants into Palestinian territory.

RESOLUTION 242

In the Israel-Arab war of June 1967 Israel captured the Golan Heights, part of the sovereign territory of Syria; the Sinai, part of the sovereign territory of Egypt; Gaza, part of Palestine, under military occupation by Egypt; and the West Bank, Jordanian territory held in trust for the Palestinians. In all four territories it started to build settlements for Jewish Israeli citizens, indicating its intention to incorporate these areas into Israel.

In response, the Security Council passed Resolution 242.xxxv It listed two fundamental principles essential to a just and lasting peace in the Middle East:

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;
(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.

Although it has been the subject of much controversy, this resolution is easy to interpret if we bear in mind a simple principle: a Security Council resolution is not a puzzle to be solved; it is a legal document which means what the words say.

Principle(i) is a specific response to the recent war. A just and lasting peace cannot possibly include continuation of the recent occupations. Israel’s troops must go back to where they came from. That is, back to Israel inside Israel’s de facto border, the Green Line.

Principle(ii) is general, and could be applied in any conflict situation. Put colloquially, it says that states in the area should stop fighting, get together to sort out where their borders are, and stick to them.

It is not difficult to work out how Principle(ii) applies in this case. The Arab states had not even recognized the existence of Israel, let alone its right to have recognized boundaries. Israel had not respected the right of the Arab states to have secure boundaries and had violated their territorial integrity.

The Resolution says nothing about timing. If the drafters had said, in Principle(i), “Immediate withdrawal”, we might not have had 47 years of Israeli occupation of the West Bank and Gaza. But they didn’t.

The Resolution is addressed to “States in the area”. It says nothing about the Palestinians and the territory of Palestine. If the drafters had included a third principal about the right of the Palestinian people to self-determination within Palestine we might not have had 47 more years of the denial of that right. But they didn’t.

That is Resolution 242 in a nutshell, except for a point of little consequence that has been blown up out of all proportion: the use of the word ‘territories’ in Principle(i) which could be interpreted to mean either ‘some territories’ or ‘all territories’. In this case of genuine ambiguity it is reasonable to turn to the drafters of the resolution for explanation. Dean Rusk, the American Secretary of State, said:

We wanted that to be left a little vague and subject to future negotiation because we thought the Israeli border along the West Bank could be “rationalized”.xxxvi

The use of deliberate vagueness to express intention produces only confusion: drafters should say what they mean. In this case, there is actually no need to say anything. The border to which the forces must withdraw is the de facto border of Israel, the Green Line. This was decided in 1949 by agreement between the two opposing military forces. The process of withdrawal will involve discussions between the parties: there is nothing to stop them “rationalizing” the lines by mutual agreement, providing it is stated that this is done without prejudice to a final border determination, as is always stated in an armistice agreement.

Status of the Green Line.

Some people have jumped to the conclusion that, because Principle(i) asks for withdrawal to the Green Line, the Resolution confirms the Green Line as Israel’s border (or as the basis of negotiation of the final border), thereby legitimizing the territorial theft of 1948-49.

There is no justification for such a view. No such words appear. Nor could they, because the UN has no authority to tell states where their borders are: that is for states to agree between themselves, which is to be achieved by Principle(ii). The two Principles are distinct and both must be satisfied: Principle(i) is not an implementation of Principle(ii).

Judge Al-Khasawneh of the International Court of Justice confirms this view:

The Green line is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory. There is no implication that the Green Line is to be a permanent frontier.xxxvii

THE STATE OF PALESTINE

In July 1988, King Hussein of Jordan severed all legal and administrative ties with the West Bank, ending its trust status and returning sovereignty to the Palestinians.xxxviii This paved the way for the Palestinian Declaration of Independence in November 1988.

Francis A. Boyle, Professor of international law at the University of Illinois, was an adviser to the Palestine Liberation Organization under Yasser Arafat when it was preparing the Declaration. Writing about it in 1990, he said that Resolution 242 “set forth” the boundaries of the Palestinian State. He also said that “today the PLO would be prepared to accept boundaries for the state of Palestine that would consist essentially of the West Bank, Gaza Strip and East Jerusalem”.xxxix,xl

If Arafat was indeed prepared to make such a huge concession, abandoning the land stolen in 1948-49 without even asking for compensation, it may have been because he believed in the prevalent but incorrect view that “Israel has never defined its borders”, and so was unaware of the legal distinction between Israel’s sovereign territory inside the partition line and the stolen territory outside that line; and also because he accepted the unfounded view of Boyle and others that Resolution 242 had confirmed the Green Line as Israel’s border. However, he was careful not to say so publicly as so doing would have undermined his negotiating position.

Palestine’s Declaration of Independence says:

The Palestine National Council, in the name of God, and in the name of the Palestinian Arab people, hereby proclaims the establishment of the State of Palestine on our Palestinian territory with its capital Jerusalem.”xli

It does not define the extent of “our Palestinian territory”, nor does it specify East Jerusalem.

The attached Political Communiqué concentrates on ending the occupation, and also calls for an international peace conference on “the issue of the Middle East and its core, the question of Palestine”, thereby accepting the two Principles of Resolution 242.xlii Nowhere does it say that the Palestinian state is limited to the areas occupied by Israel from 1967. Nor does it mention East Jerusalem.

The peace conference was never held because Israel and the US refused to attend. It was replaced by the bilateral Israel-Palestinian Oslo process from 1993 onwards. The process was intended to lead to final status negotiations implementing Resolution 242, to be completed within five years. The starting point was to be an interim agreement to establish Palestinian self-rule in the West Bank and Gaza, with a withdrawal of Israeli military forces from Gaza and the Jericho area.xliii There was no mention of a Palestinian state in the initial agreement.

Although this process did not lead to a peace agreement, the idea of a Palestinian state in the West Bank and Gaza eventually emerged as the accepted goal, most particularly in the “Clinton parameters” of December 2000.xliv

Palestine needed to explicitly define its territory when it made its application for Membership of the United Nations in September 2011. In the speech which Mahmoud Abbas gave to the UN General Assembly he said:

The goal of the Palestinian people is the realization of their inalienable national rights in their independent State of Palestine, with East Jerusalem as its capital, on all the land of the West Bank, including East Jerusalem, and the Gaza Strip, which Israel occupied in the June 1967 war…xlv

He also referred back to the 1988 decisions of the Palestine National Council:

Because we believe in peace and because of our conviction in international legitimacy, and because we had the courage to make difficult decisions for our people, and in the absence of absolute justice, we decided to adopt the path of relative justice – justice that is possible and could correct part of the grave historical injustice committed against our people. Thus, we agreed to establish the State of Palestine on only 22% of the territory of historical Palestine – on all the Palestinian Territory occupied by Israel in 1967.

As detailed above, the Declaration and Political Communiqué of 1988 did not explicitly limit the extent of Palestinian territory, but they did accept Resolution 242. Presumably Abbas believed that Resolution 242 did place such territorial limits on Palestine, as advised by Professor Boyle and others.

The limitation of Palestine’s capital to East Jerusalem in Abbas’s speech is puzzling. Throughout the whole process, from 1948 onwards, the UN has been condemning the changes made by Israel in Jerusalem, and the issue of Jerusalem was always to be left to final status negotiations. Jerusalem was the capital of Mandatory Palestine, and was declared as the capital of the State of Palestine in 1988. Since both States claim Jerusalem as its capital, the obvious final status solution is joint sovereignty.

Territorial compensation

In the interests of peace, the Palestinians have been prepared to surrender to Israel the 23 percent of Mandatory Palestine that Israel stole in the 1948-49 war. But the continued colonization of the West Bank and East Jerusalem, and blockade of Gaza, have shown that Israel has not been influenced in the direction of peace by this concession. Palestine should reconsider.

At the failed peace talks between Israel and the Arab states at Lausanne in 1949, both sides accepted the Lausanne Protocol which said that the partition borders should be the basis of discussion for a territorial settlement. During the conference President Truman wrote a strongly-worded secret Note to Ben-Gurion deploring Israel’s refusal to provide territorial compensation for areas it had acquired outside the partition plan borders.xlviThe conference ended in failure, and the Green Line has remained the de facto border of Israel ever since.

Judge Al-Khasawneh of the International Court of Justice has said:

Israel cannot shed doubts upon the title of others without expecting its own title and the territorial expanse of that title beyond the partition resolution not to be called into question… The Palestinians should be negotiating based on the 1948 borders, then the conversation can be about just how much land Israel has already stolen.xlvii

Given the blatant illegality of Israel’s theft of Palestinian land outside its borders in 1948-49, Palestine could make a strong case that, in terms of justice, international law, and viability, it deserves and needs compensation for the stolen territory in the form of a transfer of territory from Israeli sovereignty to Palestinian sovereignty.

I suggest that the bulk of territory transferred should be in the Negev, the arid territory south of Beersheba (see map above).

This could achieve three things:

  1. Provide territorial contiguity between the West Bank and Gaza;
  2. Provide space for the returning population.
  3. Enable the Bedouin, if they so wish, to transfer from Israeli sovereignty to Palestinian sovereignty.

This is not a new idea. The Negev was allocated to the Jewish state in the partition plan as an area capable of absorbing large numbers of Jewish immigrants, having at the time only a small population of mostly semi-nomadic Bedouin. The expulsion of 750,000 non-Jewish Palestinians and Israel’s de facto enlargement in the 1948-49 war meant that the original reason for allocating the Negev to Israel had become obsolete.

The UN Mediator was the first to suggest, in 1948, that some of the Negev be transferred to the proposed Arab state, at that time as compensation for the loss of western Galilee.xlviii

The Arabs, at Lausanne, said that they would need the Negev to accommodate the returning refugees, since Israel was not willing to accept them.xlix

Readers may ask why I do not simply suggest the return of the stolen territory, thereby implementing the original partition plan. The answer is that the partition lines were not very suitable borders in 1948, and are even less suitable in 2015, after 67 years in which the stolen territory has been under de facto Israeli sovereignty. Problems cannot be solved by rewinding history. There needs to be a new partition which is appropriate for today’s conditions, and which can lead to a just and lasting peace.

The most important requirement for the Palestinians is space. There are some 4 million Palestinians in the West Bank and Gaza, plus 5 million stateless refugees with a right of return, plus over a million Arab citizens of Israel who might prefer to live under Palestinian sovereignty. In addition, some of the Palestinians in the diaspora will want to return to help in the rebuilding of their state. In order to form a viable state Palestine needs much more than the twenty-two percent of Mandatory Palestine within the West Bank and Gaza. The Negev, with its low population density, can provide this space.

This is not to rule out other territory being transferred from Israel to Palestine: for example, it might be a good idea to extend the West Bank northwards to include Nazareth, a mainly Arab city. The Palestinians have been the victims of a crime, and it is up to them to make proposals about what territorial compensation they consider appropriate. But there is always a problem with transfer of sovereignty of populated territory. The residents of that territory are faced with a choice: either to agree to subject themselves to foreign jurisdiction, or leave their homes, schools, businesses and workplaces in order to remain within the same jurisdiction. They could be very unhappy about being forced into such a choice, and this might reduce the chances for a peaceful future.

Drawing new borders is not something that can be left to politicians. It requires a Boundary Commission of experts from both sides, under independent chairmanship, to consider issues such as security, resources, transport links, other infrastructure and, above all, the wishes of residents. The aim should be to minimize the number of people who would be forced to choose between subjecting themselves to a sovereignty they do not want, or leaving their homes. Any who must make this choice should be given dual citizenship so they will be free to change their mind later.

Jerusalem is declared as the capital of both states: it should not be divided, but come under joint sovereignty. Joint sovereignty over Jerusalem, and dual citizenship for some residents, could be steps towards a single sovereignty and citizenship, as discussed below.

The wishes of the Palestinian refugees should also be taken into account by the Boundary Commission. Justice for them involves giving them a choice. Some will want to stay in their host state as citizens, some will want to return to their original home area in Israel, and some will prefer to settle within the State of Palestine.l

The next step

Any claim for territorial compensation needs to rest on an assured legal basis. The author suggests that the Palestinian leadership ask their friends in the General Assembly to ask the International Court of Justice for an Advisory Opinion as to whether the territory, outside Israel’s defined borders, captured in the 1948-49 war, and incorporated into the state, was acquired by war in violation of international law; and whether the rule imposed there violated the Palestinian’s right to self-determination as expressed in Chapter XI of the UN Charter. Then everyone will know about Israel’s border definition on May 14, 1948, and its illegal conquests in the 1948-49 war.

The one-state solution

Many people believe that the only possible long-term solution to the Israel-Palestine conflict is for the two to merge into a single state. Then all these problems over borders, territory, control of Jerusalem, and final location of the refugees, would simply disappear. The author agrees, and has proposed a model of a united state consisting of two largely autonomous nations, along the lines of the England-Scotland model.li

But, since the two states already exist as legal entities, a one-state solution can only come about by a voluntary union of the two existing states. And a union would not be voluntary if Palestine, while under the duress of a military occupation of the West Bank and blockade of Gaza, had to negotiate with an Israel that refuses to recognize its existence. Palestine must gain its independence first, and this means solving the territorial issue.

SUMMARY OF CONCLUSIONS

  1. When the State of Israel was declared on May 14, 1948, it defined its borders to be those specified for the Jewish state in the UN partition plan. Israel’s border definition limited the sovereign extent of the State of Israel to territory within those borders, thereby defining the borders of the non-self-governing territory of Palestine to be those specified for the Arab State in the partition plan.
  2. Israel was forced to define its borders according to the partion plan in order to secure recognition by President Truman of the USA and others. Its intention was always to seize territory outside those borders.
  3. During the subsequent war with the Arab states, Israel conquered half of the remaining territory of Palestine, and incorporated it into the state. That territory, outside Israel’s borders, acquired by war in violation of international law, is rightly called ‘stolen territory’.
  4. The incorporation of that territory into Israel also violated the “sacred trust” created by Chapter XI of the UN Charter whenever a state administers the territory of a non-self-governing people.
  5. The widespread belief that Israel has never defined its borders is a fiction created by Zionist propaganda in an attempt to hide the illegality of its actions.
  6. When Israel conquered Egyptian, Syrian, Jordanian, and Palestinian territory in the 1967 war, the UN Security Council passed Resolution 242 requiring Israeli forces to be withdrawn from those areas. It also called for a just a lasting peace in which states in the area would recognize and respect each others borders.
  7. It is widely believed that Resolution 242 specified the 1949 Armistice Line to be the permanent border of Israel (or the basis of negotiation of the final border), thereby legitimating Israel’s land theft in 1948-49. This is incorrect. No such words appear, nor could they, because the UN has no authority to tell states where their borders are: that is for states to agree between themselves.
  8. In the Israel-Palestinian peace process, the Palestinian leadership has come to accept the idea of a Palestinian state consisting of only the West Bank and Gaza, amounting to 22 percent of Mandatory Palestine, thereby ceding the stolen territory to Israel. They may have done this because they were unaware of the legal distinction between Israel’s sovereign territory inside the partition line and the stolen territory outside that line; and also because they accepted the unfounded view that Resolution 242 had confirmed the Green Line as Israel’s border.
  9. It is suggested that, because of the manifest illegality of Israel’s theft of Palestinian land in 1948-49, Palestine could make a strong case that, in terms of justice, international law, and viability, it deserves and needs compensation for the stolen territory in the form of a transfer of territory from Israeli sovereignty to Palestinian sovereignty.
  10. The most appropriate territory for such a transfer is in the southern Negev region. This could achieve three things: provide territorial contiguity between the West Bank and Gaza; provide space for the returning population; and enable the Bedouin, if they so wish, to transfer from Israeli sovereignty to Palestinian sovereignty.


Acknowledgment.

I was once one of those people who thought that “Israel has never defined its borders”. I am immensely grateful to the blogger talknic for correcting me. He has been researching and writing about this topic since before the days of the internet and many of the links listed below are from his website. I thank Prof. Ilan Pappé for reading this manuscript.

REFERENCES

i Zeev Sharef, Three Days, (London: W.H.Allen: 1962)
See author’s extracts: religion-science-peace.org/?p=1140.

ii Shelley Kleiman, “The State of Israel Declares Independence”, April 27, 1999.
mfa.gov.il/MFA/MFA-Archive/1999/Pages/Shelley Kleiman – The State of Israel Declares Ind.aspx

iii Personal letter from Weizmann to President Truman, May 13, 1947.
archives.gov.il/NR/rdonlyres/BD01C2ED-75B0-4C8F-B92B-23CA5F7BD887/0/Truman1.pdf

iv UN General Assembly Resolution 181, November 29, 1947.
en.wikisource.org/wiki/United_Nations_General_Assembly_Resolution_181

v Declaration of the Establishment of the State of Israel, May 14, 1948.
mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration of establishment of state of israel.aspx

vi In the official English translation of the Declaration (reference 5) the term “Eretz-Israel”, Land of Israel, is used as a synonym for Palestine.

viii Memoirs of Clark Clifford, as quoted by Jerusalem Center for Public Affairs.
jcpa.org/article/president-truman’s-decision-to-recognize-israel/.

ix Papers of Max Lowenthal, University of Minnesota, Diary entry for May 15, 1948:
See author’s transcript:religion-science-peace.org/?p=1095

xLetter from Epstein to President Truman requesting recognition of Israel, May 14, 1948.
trumanlibrary.org/whistlestop/study_collections/israel/large/documents/newPDF/3-5.pdf.

xi Letter from the Provisional Government of Israel to the Security Council, May 22, 1948.
unispal.un.org/UNISPAL.NSF/0/B4085A930E0529C98025649D00410973

xii US Department of State Bulletin, vol. 18, no. 464, p. 673, May 23, 1948.
https://archive.org/stream/departmentofstatx1848unit#page/673/mode/1up

xivAustralian recognition of Israel.
trove.nla.gov.au/ndp/del/article/43802115.
See also author’s transcript: religion-science-peace.org/?p=1118

xv Balfour Declaration, November 2, 1917
unispal.un.org/UNISPAL.NSF/0/E210CA73E38D9E1D052565FA00705C61

xvi San Remo Resolution, April 25, 1920
cfr.org/israel/san-remo-resolution/p15248

 xviiLeague of Nations Mandate for Palestine, September 16, 1922
en.wikisource.org/wiki/Palestine_Mandate

xviii UN General Assembly Resolution 181, November 29, 1947
unispal.un.org/unispal.nsf/0/7F0AF2BD897689B785256C330061D253

xix Jeremy R. Hammond, “The Myth of the U.N. Creation of Israel”, Foreign Policy Journal, Oct 26, 2010.
foreignpolicyjournal.com/2010/10/26/the-myth-of-the-u-n-creation-of-israel/view-all/

xxi UN Document DPI2499, The Question of Palestine and the United Nations, 2008, pp. 5-6
unispal.un.org/pdfs/DPI2499.pdf

xxii Montevideo Convention on the Rights and and Duties of States, December 26, 1933.
cfr.org/sovereignty/montevideo-convention-rights-duties-states/p15897.

xxiii Israel State Archivist’s English paraphrase of Government Protocols, Week 1.
israelsdocuments.blogspot.com/2012/08/new-series-cabinet-protocols.html

xxiv Reference 1, page 297. See author’s extract: religion-science-peace.org/?p=1140.

xxv Epstein’s Letter to Truman, May 14, 1948 in the Jewish Virtual Library
jewishvirtuallibrary.org/jsource/History/epsteinlet.html

xxvi Roger Gaess, “Interview: Avi Shlaim”, Middle East Policy Council Journal, vol. 16, no. 3, 1999.
mepc.org/journal/middle-east-policy-archives/interview-avi-shlaim.

xxvii John V. Whitbeck, “One and only one road to peace for Israel-Palestine”, Counterpunch, Oct 15, 2014;
counterpunch.org/2014/10/15/one-and-only-one-road-to-peace-for-israel-and-palestine/.

xxviii John B. Judis, Genesis: Truman, American Jews, and the origins of the Arab-Israeli conflict, (New York: Farrar, Straus and Giroux, 2014) p. 317.

xxix UN Document DPI2499, The Question of Palestine and the United Nations, 2008, p. 9.
unispal.un.org/pdfs/DPI2499.pdf

xxx Report by Ben-Gurion to Provisional Government of Israel, June 3, 1948.
mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/10 report to the provisional government of israel.aspx.

xxxi Arab League Session 12, April-June 1950.
jewishvirtuallibrary.org/jsource/Peace/legsess.html.

xxxii Area of Jurisdiction and Powers Ordinance, September 16, 1948.
israellawresourcecenter.org/israellaws/fulltext/areajurisdictionpowersord.htm.

xxxiii Letter from UN Palestine Conciliation Commission to the Government of Israel, 3 September 1949;
domino.un.org/pdfs/AAC25IS37.pdf

xxxiv UN Charter, Chapter XI, Declaration Regarding Non-self-governing Territories.
un.org/en/documents/charter/chapter11.shtml

xxxv UN Security Council Resolution 242, November 22, 1967.
en.wikisource.org/wiki/United_Nations_Security_Council_Resolution_242

xxxvi Dean Rusk, As I Saw It (W.W. Norton, 1990) p. 389; quoted on Wikipedia page “United Nations Security Council resolution 242”.
en.wikipedia.org/wiki/United_Nations_Security_Council_Resolution_242

xxxvii International Court of Justice, “Legal consequences of the construction of a wall in the Occupied Palestinian Territories: separate opinion of judge Al-Khasawneh”, p. 235, para. 11, July 9, 2004.
icj-cij.org/docket/files/131/1685.pdf

xxxviii King Hussein of Jordan’s Address to the Nation, July 31, 1988.
kinghussein.gov.jo/88_july31.html

xxxix Francis A. Boyle, “The Creation of the State of Palestine”, European Journal of International Law, vol.1
(1990) p. 304.
ejil.org/pdfs/1/1/1136.pdf

xl Professor Boyle informed the author, in a recent correspondence (November 2014), that he advised Arafat not to mention UNSC Resolution 242 or the partition plan in the Declaration, so as to leave the Palestinians with maximum flexibility in negotiations. Arafat did not follow this advice.

xli Palestinian Declaration of Independence, November 15, 1988.
en.wikisource.org/wiki/Palestinian_Declaration_of_Independence

xlii Palestine National Council Political Communiqué, November 15, 1988.
al-bab.com/arab/docs/pal/pal4.htm

xliii Oslo I Accord: “Declaration of Principles on Interim Self-Government Arrangements”, Sep 13, 1993.
knesset.gov.il/process/docs/oslo_eng.htm

xliv President Clinton’s parameters for an Israel-Palestine peace agreement.
unispal.un.org/UNISPAL.NSF/0/D57AFCDD6EB1445585256E37006655E4

xlvi US Department of State, Foreign Relations of the United States 1949, vol. VI, p. 1072.
digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx? type=goto&id=FRUS.FRUS1949v06&isize=M&submit=Go+to+page&page=1072
See also author’s transcript: religion-science-peace.org/?p=1088

xlvii International Court of Justice, “Legal consequences of the construction of a wall in the Occupied Palestinian Territories”, July 9, 2004: separate opinion of judge Al-Khasawneh, p. 235, para. 11.
icj-cij.org/docket/files/131/1685.pdf

xlviii Progress Report of the UN Mediator, PART ONE, chap. III, para. 6, September 16, 1948.
unispal.un.org/UNISPAL.NSF/0/AB14D4AAFC4E1BB985256204004F55FA

xlix UN Conciliation Commission for Palestine, Progress Report, 23 October 1950, chap. 4, para. 15.
domino.un.org/unispal.nsf/0/93037e3b939746de8525610200567883

l Salman Abu Sitta, “The implementation of the Right of Return”, Israel-Palestine Journal, vol. 15 no. 4 & vol. 16 no. 1, 2008-2009.
pij.org/details.php?id=1217

li David Gerald Fincham, “Israel-Palestine: the one-state-two-nations solution”.
religion-science-peace.org/?p=1259

About David Gerald Fincham

Retired academic scientist.
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