Jewish Settlements are legal according to
International Law
On the Question of the Legality of the Jewish
Civilian Communities In the Disputed Areas of Judea, Samaria and Gaza
Yisrael Medad
Within the context of international law,
attention must be focused on the Balfour Declaration of 1917. The
text of the Declaration, it should be emphasized, was coordinated with
the United States (the Palestine Royal Commission Report of 1937, p. 22,
notes that it had been approved by U.S. President W. Wilson prior to its
publication). Indeed, the Inquiry Commission established by President
Wilson affirmed “that Palestine should become a Jewish State” and that
“Palestine...was the cradle and home of their vital race”, a succinct statement
of the essence of the principle of self-determination.
That Declaration, issued by the British
Government and later to serve as the basis for the League of Nations Mandate
approved in 1922, refers on the one hand to “a National Home for the Jewish
people in Palestine” while on the other, refers to “non-Jewish communities
in Palestine”.
The distinction is not coincidental.
National and historical rights are recognized
clearly in the context of the Jewish people only, whereas the opposing
parallel, that the land in question ‘belonged to an Arab people’ as Arabs
claim, was not mentioned and purposefully ignored. What was included
in the Balfour Declaration and the Mandate were a nebulous phrase relating
to the “civil and religious rights” of non-specified “non-Jewish communities”,
without reference to Arabs at all.
Furthermore, the aforementioned Mandate
text acknowledges that “recognition has thereby been given to the historical
connection of the Jewish people with Palestine and to the grounds for reconstituting
their national home in that country”. In Article 6, the administration
apparatus of the Mandate, a temporary form of government, was charged with
facilitating and encouraging “close settlement by Jews on the land, including
State lands and wastelands not required for public purposes”.
It is worthy to note that the United States
House of Representatives and the Senate adopted resolutions supporting
the Mandate, on June 30, 1922 and May
3, 1922 respectively. President
W. Harding signed a proclamation on September 21, 1922 that stated that
“the United States of America favors the establishment in Palestine of
a national home for the Jewish People...and that the holy places and religious
buildings and sites in Palestine shall be adequately protected”.
These acts reinforced the position fully understood that the rights accruing
a national grouping belonged solely to the Jewish people and that non-Jewish
elements could claim but protection for singular and individual buildings
and sites.
What cannot be ignored is the historical
connection of the Jewish people to this Land. The continuous presence
of Jews in their homeland over many centuries under Jewish independent
rule (tribal federation and monarchy) and centuries of foreign rule is
itself a proof of right and legality. This presence included, indeed
primarily so, the areas known as Judea, Samaria and Gaza. This presence
was maintained despite destruction of political sovereignty, conditions
of exile, oppression and persecution by the Babylonian, Greek-Syrian, Roman,
Persian, Arab and Ottoman Empires. Despite the early favorable attitude
of the British Empire, the pursuance of the internationally recognized
goals of the Mandate necessitated acts of national liberation akin to those
of the American Colonies in 1777, as well as other countries such as India,
Ireland and African nations. This struggle for freedom forced Great
Britain to turn to the United Nations in 1947.
The resolution adopted by the General Assembly
of the United Nations on November 29, 1947 and accepted by the governing
institutions of the Jewish People is to be seen as the fountainhead of
the recognition of Israel as an Independent State possessing sovereignty.
In rejecting that resolution and in declaring war on the nascent state
of Israel, the Arab communities and neighboring states severed all legal
connection to claims they did or would, in the future, make. In a
sense, that rejection of the compromise proposal of partition revived the
full and inalienable rights of Jews to all the territories included in
the Mandate. These territories include Judea, Samaria and Gaza.
As a result of armed acts of aggressions,
the Jordanian entity subsequently conquered portions of the Palestine Mandate
and Egypt occupied the Gaza Strip district. The non-Jewish communities
of the areas of Judea and Samaria, never having expressed themselves in
criteria of nationhood and geo-political sovereignty previously, never
established a state on this territory following the 1947 Resolution and,
in fact, requested, at the Second Palestine Arab Conference convened in
Jericho on December 1, 1948, that these territories be enjoined to the
Hashemite Kingdom. Indeed, a resolution of unification was signed
into Jordanian law on April 24, 1950, which purported to transfer to the
Hashemite Monarchy sovereign rights to those areas of Western Palestine
not under Israeli control following the 1948-49 War of Independence. That
law negated the terms of international law, and, in any case, was only
recognized by Great Britain and Pakistan.
In the matter of General Assembly Resolution
242, we refer you to the testimony of Eugene V. Rostow who participated
in the negotiations of that Resolution. For example, in The New Republic
issue of October 21, 1991, page 14, Mr. Rostow treats the issue of illegality.
He makes it plain that Jewish settlement in Judea and Samaria is indeed
legal, and that the Jewish right of settlement west of the Jordan River
is “unassailable”.
We now briefly address another point.
The status of the areas of Judea, Samaria and Gaza (YESHA) can in no way
be conceived as being governed by the Fourth Geneva Convention for the
simple reason that they are not occupied territories as defined in this
document. Paragraph (6) of Article 49 of the said Fourth Geneva Convention
is irrelevant to the question at hand in that Article 2 stipulates that
the territory under issue must belong to a High Contracting Party.
This is not the case, as the territory under discussion did not belong
to any such Party. Furthermore, the drafting history of Article 49
was directed against the practices of the Nazi regime in forcibly transporting
populations. It would border on the ridiculous to claim that Article
49 (6) which was fixed so as to prevent a return of heinous Nazi practices
of Judenrein should now be understood as meaning that Judea, Samaria and
Gaza (YESHA) must become empty of Jews.
Moreover, the Convention does not and could
not prohibit the establishment of communities, towns or other civilian
centers. Even government economic incentives cannot be considered
as “mass deportation” or “transfer”. Over 90 percent of the communities
populated by Jews are located on state land, not land privately owned by
Arabs. Indeed, some of the communities are built on land that was
either owned by Jews prior to 1967 or purchased afterwards. One last point.
The basis for an Arab claim to Palestine, formulated by the PLO which
represents itself as the legal vehicle for that claim, is the Palestinian
National Covenant. This document can only be described as racist
and invalid on humanitarian grounds and unacceptable in international law.
In fact, a Palestinian identity has always been a tactical move by Arabs
who always viewed themselves as belonging to a greater Arab nation as in
the case of the request of the General Syrian Congress on July 2, 1919
“that there should be no separation of the southern part of Lebanon [that
is, the Palestine territory] from the Syrian country”, a position repeated
ever since as, for example, by Yasser Arafat when he declared over the
Voice of Palestine on November 18, 1978 that “Palestine is southern Syria
and Syria is northern Palestine”.
In an interview with Matt Lauer on NBC’s
The Today Show on October 1, 1997, Secretary of State Madeleine K.
Albright related to building in Yesha and said: “I wasn't happy…I
felt that going forward with those kinds of buildings was not helpful.
Mr. Lauer pressed her and stated: “ It's legal. “, and Albright admitted:
“It's legal.”
from the fact that Arabs aligned with the PLO have announced that Jewish
communities established in the territories of YESHA are a priori “terrorist”
in nature and are a form of “aggression”. Having thus defined Jewish
civilian in this way, Arabs make the claim that they are defending themselves
and are justified in using all means at their disposal including shooting,
bombing and stabbing such as has been used in this latest wave of violence.
We reject such an approach as immoral, illegal and reminiscent of war crimes
of the recent past.
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