From The Other Side Of The Bench

By David J. Seidemann, Esq.

I cleaned my entire house for Passover a few weeks ago, but my most significant find came last night. Tucked away in a dust-covered box that was under my bed was a handwritten 8-by-11 sheet of paper with notes in my father’s handwriting. I imagine they were talking points my father used for a lecture, or perhaps they were simply notes to himself and to his children, grandchildren, and great-grandchildren regarding his family’s experience in the Holocaust.

At the bottom were the words “Be vigilant and always remember.” Also listed amongst the various dates and experiences were the names of family members–those who survived the horrors and those who did not. My father, may he live and be well, knows the definition of “heinous” and is not comforted by Mahmoud Abbas’s recent proclamation that the Holocaust was one of history’s most heinous episodes.

Perhaps Abbas’s proclamation would be worthy of serious consideration if he had not simultaneously agreed to sign a reunification pact with Hamas, the present agent of genocide. All along, when Abbas was arguing for the “right of return,” we now know what he really meant–a return to the arms of Hamas.

Bibi Netanyahu was never fooled. When he insisted that Abbas recognize Israel as the Jewish homeland, he knew all along that is something Abbas could not do. The emperor was exposed and he has run home to his roots. Abbas now has a self-granted license to play “good cop, bad cop” with Israel and to blame any future terror–perpetrated not by his faction, G‑d forbid, but by the other faction, the other part of the “legitimate” government–on Israel’s refusal to negotiate with his government, which, by the way, includes a radical element known as Hamas.

Such moves might outsmart a novice on the political scene (no need to mention Obama’s name), but thankfully Bibi has been around the shuk a few times.

On the heels of Yom HaShoah, when we remember the six million, and looking toward Yom HaZikaron, when we remember our soldiers who have fallen in defense of Israel, here is our request for the law of return:

When the six million are returned, my relatives included, we will contemplate the Arab right of return.

When every Israeli soldier who was killed in battle is returned, we will contemplate discussing an Arab right of return.

When the close to 800,000 Jews who were forced out of their homes in Arab countries are compensated, we will contemplate discussing an Arab right of return.

When my cousin, a beautiful 19-year-old girl from Bnei Brak who was murdered on a bus in Jerusalem, is returned, we will put the Arab right of return on our list of matters to be considered.

When all victims of Arab terror are returned to their families, we will consider the Arab request.

When Jews are permitted to return to Har HaBayit, the holiest place in Jerusalem–a place that was holy before Islam was born–we will entertain a discussion on the Arab right of return.

And when that conversation on the Arab right of return takes place, here is what we will tell the world. By definition, something that was never rightfully yours cannot be returned to you. Our Holy Temple in Jerusalem was completed in 827 BCE. Mohammed was not born until 570 CE. For 3,300 years, Jerusalem has been Israel’s capital city. Jerusalem has never been the capital city of any Arab country.

In more modern times, Arabs were in control of Israel proper twice, from 634 to 1099 and again from 1292 until 1517, when the Turks booted them out. All the while, Jews continued to reside there.

Biblically, the conquest of the land of the Canaanites is recorded in the Book of Joshua, as the land we call home was conquered and divided amongst the 12 Tribes of Israel more than 3,000 years before the Islamic religion appeared on this earth. The word “Jerusalem” does not even appear in the Koran; Muslims face Mecca, not Jerusalem, when they pray.

History matters, and if the nation of Israel was “there” before the Islamic religion was born, well you see how difficult it would be to return any part of Israel to the Arabs.

So the Arabs will tell you that they took it from Israel in a conquest back in the year 634, and all is fair in love and war. Well, if war and conquest is your measuring stick, we took it back in 1948, 1956, 1967, 1973, and every other time the Arabs attacked. So when all else fails, the Arabs pull out their trump card: yes, the United Nations General Assembly Resolution 194 of 1948, the famous right of return for Arabs displaced by Israel’s existence.

Here is the problem with that argument. First of all, General Assembly resolutions are not binding. Second, even if they were binding, the Arabs would have to prove they were displaced from land that was theirs. At this point we direct all sympathizers to the earlier paragraphs of this article or any history book.

Then there is another problem with the Arab argument of return to occupied lands. Under international law, lands won in a defensive war are not subject to the same restraints on “occupation” as lands grabbed in an offensive war. No Arab wants to hear that.

More appropriate is Resolution 242 adopted in 1967 by the Security Council. Unlike General Assembly resolutions, which are advisory, Security Council resolutions are binding. That resolution supersedes Resolution 194 and provides that the issue of refugees and return be dealt with in a manner that is just and provides just compensation to those who can prove displacement. That is a far cry from flooding Israel with every Arab who claims to have once walked upon the land. That resolution takes into account Israel’s security needs.

And then there is another problem in the “occupation” argument which is often ignored. From whom did Israel take the land in order to be considered “occupiers”?

Seeing that there was no PLO or PA or separate Arab state in that area other than Jordan, the only state that Israel could have possibly taken the land from was Jordan.

But the Oslo accords of 1993 and the peace treaty with Jordan in 1994 gave control over the West Bank to the Israelis. Which again calls into question whether it is an occupation, and exactly from whom Israel allegedly “took” the land in what the whole world knows was a defensive war.

So, since it is apparent that all of the arguments based on politics, law, and history will fail (I guess one can continue to ignore reality), the United States tries one last grasp at a straw. Make peace, Israel; give it back; capitulate–or risk, in the words of John Kerry, becoming “an apartheid state.” This threat followed on the heels of Kerry’s earlier threat that if the talks fail, Israel would be further isolated and the momentum of the BDS movements would be increased. And these are our friends.

My father’s words are ever so clear and appropriate: “Be vigilant and always remember.”

Kerry’s words are muddled in the forgetting of history and the roots of the conflict. They are inappropriate coming from a supposed ally, and they simply set Israel up as the scapegoat for any future unrest.

They are a stark reminder as to why Israel must insist on its security first and foremost. v

David Seidemann is a partner with the law firm of Seidemann and Mermelstein and serves as a professor of business law at Touro College. He can be reached at 718-692-1013 or


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