Illegality of Sharm E-Sheikh Memo Under Israeli Law

THE ILLEGALITY OF THE SHARM E-SHEIKH MEMORANDUM UNDER ISRAELI LAW

Howard Grief

Policy Paper No. 91, 1999

Executive Summary

Amid the usual pomp and ceremony which follows all the agreements concluded with the PLO, the Government of Israel under the new leadership of Prime Minister Barak entered into a new phase of territorial surrender of patrimonial and hereditary lands belonging to the Jewish People when it agreed to the Sharm e-Sheikh Memorandum on September 4, 1999. As with all prior agreements, the new one entailed grave violations of Israeli law, both procedural and substantive. In the procedural sense, two violations stand out. One was the lack of any prior Cabinet authorization granted to the Prime Minister to sign the agreement itself. Though such authorization was given afterwards, this reverses the order of proper constitutional procedure and turns the Cabinet into a rubber stamp for a fait accompli engineered by the Prime Minister.

The second procedural defect, which is even more important from a legal perspective, was the lack of legal capacity existing in the PLO to make a binding agreement or contract with the Government of Israel. This arises from its status in Israeli law as a terrorist and criminal organization, which cannot be changed as long as the Charter of the PLO remains in full force and effect, as it still does, despite the political charade conducted by Chairman Arafat to pretend that it has been abrogated or amended to delete anti-Israel, anti-Zionist clauses of the Charter. The best proof that this was never done as alleged by Arafat in his letter to President Clinton is that the PLO could not exist without the Charter which is its source of authority and raison d'etre. Since the PLO still exists in the most vibrant manner possible -- witness the fact that it signed the Sharm e-Sheikh Memorandum and it is now conducting the Permanent Status negotiations with Israel -- so must the Charter continue to exist with all its abominable provisions completely intact.

The substantive violations of law are both constitutional and criminal in nature. They concern the prohibition of ceding any part of the Land of Israel that is in the effective possession and hence under the sovereignty of the State of Israel, both de jure and de facto, even though these areas are not included formally within the borders of the State. Jewish history reinforces this prohibition. Israeli leaders would not have surrendered ancient Jewish lands had they been imbued with a deeper sense of the Jewish historical connection to the Land of Israel.

The establishment of Jewish settlements in Judea, Samaria and Gaza has drawn strong American criticism but this runs counter to an amazing fact, little remembered today. The Americans signed a treaty with Great Britain, exactly 75 years ago, known as the Anglo-American Convention of December 3, 1924 which expressly recognized Jewish settlement activity in all parts of the Land of Israel included in the mandated territory of Palestine. This treaty became part of American domestic law until the Mandate itself expired. That treaty recognition is sufficient by itself to bar any American objection today to new Jewish settlements in Judea and Samaria because all rights granted to the Jewish people in the Mandate survived afterwards and were inherited by the State of Israel, particularly the right of "close settlement by Jews on the land".

Under the Sharm e-Sheikh Memorandum, UN Security Council Resolutions 242 and 338 serve as the basis for the Permanent Status negotiations. But this basis is fallacious, since these resolutions do not apply to Judea, Samaria and Gaza, in light of the fact that they are not "occupied territories" as defined under international law, nor Israeli law. The supreme irony is that it was Israel itself that encouraged the whole world to believe that they do apply, since it was decided to administer the areas recaptured in the Six Day War in the same fashion which "occupied territories" are normally bound to be administered by an occupying country under the rules of international warfare, though Israel did so on a voluntary basis in accordance with humanitarian considerations.

A Permanent Status Agreement which is called for under the Sharm e-Sheikh Memorandum is not needed, not only because the fictitious "Palestinian people" represented by the PLO have no legal or historical right to the Land of Israel, but also because a permanent settlement was already made at the San Remo Conference in April 1920. Moreover, Israeli law has also permanently settled the question of Jerusalem's status, which the Government of Israel has no legal right to change or even negotiate. In regard to Arab refugees, the latter do not have any "right of return" to a country which has never been their ancestral homeland to which their forebears came in the 7th century as foreign invaders and then in succeeding centuries as foreign settlers or in the 20th century as illegal immigrants during the period of the British Mandate.

The so-called peace process with the PLO, which is actually a land withdrawal process, undoes the work of 100 years of Zionism and undermines the existence of the Jewish state. It will bring nothing but disaster and war as the portents already indicate, especially increased acts of terrorism. Those Israeli leaders who initiated this process and blessed it by their implementation should one day be made accountable for their irresponsible and illegal actions in an appropriate judicial forum.