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Palestinians have given up right to have U.S. support

By Steven Zak
web posted August 5, 2002

At the end of World War I, the British and French received "mandates" from the League of Nations to carve up the collapsed Ottoman Empire into many of today's Middle East states. The British mandate included the region of Palestine, which was cut into a large piece that became Jordan and a small piece that later became Israel.

Judea and Samaria -- what the Arabs call the "West Bank" -- and the Gaza strip were left undefined. Jordan annexed Judea and Samaria while Egypt took Gaza during their 1948 effort to destroy the nascent Jewish state. Israel acquired those territories in a 1967 war of self-defense against those same two aggressors.

How would applying principles of American law cast light on the Middle East? If this were a dispute between Israel and either of those Arab countries, the latter would have little claim to title, since they acquired the territories by force and lost them the same way. But neither Arab country seeks the return of that land, so that matter is moot.

The "Palestinians," as those Arabs now call themselves as if to suggest ownership by their very moniker, never had title to any part of Israel. They may think they should have, notwithstanding that some of them weren't even born in the disputed lands (Yasser Arafat, for instance, is Egyptian). But the Arabs never had title since there was never in history an Arab state in Palestine.

Even if a people could have title without having had a state, the Arabs in the eastern part of Israel made no claims to title against Jordan and Egypt during the 19 years that those states had control of the disputed territory. Even post World War I, in 1919, the Arabs had no designs on an independent state in Palestine but rather supported the region's incorporation into Syria, which would shortly become a state.

The Arabs, in other words, had no "Palestinian" identity, which is a recent creation designed to bolster their claims against Israel, and not a reflection of some longstanding ambition for statehood. Now, of course, they do demand such a state in the "West Bank," which for many of them includes all of Israel.

But the law isn't forgiving of such a late turnaround. There's an old legal maxim that says: "The law helps the vigilant before those who sleep on their rights." Our laws embody values, and we recognize the value of stability and finality -- and of reward for those who create through their labor as against those who slumber while others build. So under our law, those who fail to even make a timely claim lose, forever, their right to do so.

But the Arabs did more than merely fail to make a timely claim. They affirmatively repudiated offers of statehood on at least three occasions: In 1937, when Britain's Peel Commission recommended partitioning Palestine into Jewish and Arab parts; in 1947, when the General Assembly of the United Nations voted in favor of partition; and in 2000 when Israel, at Camp David, offered the Arabs a state. So even if they ever had a right to statehood, they forfeited that right by waiver.

Even assuming a legitimate, present Arab claim to any part of Palestine, one more legal concept must be considered. The bedrock principle in any equity case, such as a land claim, is that one who has "unclean hands" is not entitled to relief. A party that acts wrongly loses moral standing even to be heard.

Maps in official Palestinian Authority school books in which Israel does not exist provide strong evidence that the Palestinian Arabs entered the peace process with fraudulent intent. They induced Israel into negotiations by feigning peaceful intentions while actually planning the destruction of the Jewish state. Fraud is a classic measure of unclean hands, and it should bar the Arabs from even presenting an equitable claim.

Of course, it would be hard to imagine what could better render hands unclean than genocide bombings and other acts of murder. (A recent poll by the Palestinian Center for Policy and Survey Research in Ramallah demonstrated that the overwhelming majority of Palestinian Arabs supports such violence and so shares the blame collectively.) Even if, then, the Arabs otherwise had a good claim, which they do not, they would have lost the moral standing to press it.

But what of the Arabs now occupying the territories in Judea and Samaria? Their fate should remain in their own hands. They can stay, but without the right of Israeli citizenship. Or they can join 1.7 million Palestinian Arabs who make up the majority of Jordanians. If they must, they can pursue statehood by taking the matter up with Jordan.

It's their choice. But there is strong reason for the United States not to entertain the notion of a new Arab state west of the natural boundary of Israel, the Jordan River. If we were to help the Arabs to create such a state, we would be acting against one of the most fundamental tenets of our law -- that one party may not take from another something to which it has no entitlement.

Steven Zak is a writer and attorney in California.

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