| IsraelBehindTheNews.com | 30th August, 2001
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What is the Basis for the Legal Status of
Israel and the Settlements
Professor Eliav Shochetman
Hebrew University, Jerusalem
from Makor Rishon, 27th August, 1999
Moshe Negbi, a well-known legal commentator for the Ma'ariv daily as
well as for Kol Yisrael radio, was interviewed here last week. One of
the subjects discussed was the legality or lack thereof of the Jewish
settlements in Judea, Samaria and Gaza.
The Arab claim concerning the illegality of the
Jewish settlements in Judea, Samaria and Gaza could not have found a
more eloquent spokesman than Moshe Negbi. He very fervently - stressing
most firmly that he does not allow political considerations to
influence his opinions, but rather speaks as a "jurist and nothing
else" - tried to convince us that the settlements represent a violation
of the laws of war and that they therefore are an international crime.
He also claimed that all, or almost all, experts in international law
universally accept the view that the settlements are illegal.
While I have no pretensions to even a fraction of
the knowledge and understanding of law that Negbi possesses, I do
believe that I have acquired certain reading comprehension skills. I
have read the relevant material in the public international legal
literature and my conclusions concerning the
position of international law on the legality of the settlements -
based on the opinions of world-class experts in international law - are
diametrically opposed to those of Negbi.
1920 - The Historic Bond Becomes a Legal Right
In 1920, after World War I had ended, the Allied
Supreme Council that assembled at San Remo, Italy, decided, in
accordance with the Balfour Declaration of November 2, 1917, to assign
the mandate for the establishment of a national home for the Jewish
people in Palestine to Great Britain. This turned the right of the
Jewish people over Eretz Israel into a right recognized by
international law.
The historic bond that the Jewish people had with
Eretz Israel consequently became a right legally recognized by the 52
members of the League of Nations. The United States joined the League
at a later time, not having been a member of the international
organization at the time. [and held a separate forum with identical
final documents in 1925, establishing a homeland for the Jews in
Palestine. ~Shosh]
The significance of the recognition of the right of
the Jewish people to Eretz Israel by international law was in its
acknowledgment of the justice of the Jewish and Zionist claim to the
land that had been stolen from the Jewish people by foreign occupiers
and their right to have it restored to them. The recognition also
voided the legal validity of the occupation of Eretz Israel by
foreigners as well as the expulsion of Jews from it.
The Mandate over Palestine, which anchors the rights
of the Jewish people to their country in international law, states that
"No Palestine territory shall be ceded or leased to, or in any way
placed under the control of, the Government of any foreign Power," and
that "The Administration of Palestine . . . shall facilitate Jewish
immigration under suitable conditions and shall encourage . . . close
settlement by Jews on the land, including State lands and waste lands
not required for public purposes.
The British government did not fulfill the aim of
the Mandate where immigration and settlement were concerned (the
decrees of the White Paper) in gross violation of its obligations under
the Mandate. Additionally, it abused its role as the guardian of Eretz
Israel for the purpose of the establishment of a national home for the
Jewish people. In September 1922, just months after the confirmation in
writing of the Mandate, Britain decided to separate the eastern bank of
the Jordan from the western part and transfer control of the eastern
side to the Arabs (Transjordan).
Subsequently, only western Eretz Israel - from the
Mediterranean to the Jordan - the "West Bank" - remained, in the eyes
of international law, as the area designated for the establishment of a
national home for the Jewish people. It was this separation on which
the peace treaty with Jordan was based, whereby Jordan kept the land on
the eastern bank of the Jordan River and became the 'palestinian
homeland'. This separation specifically reserved the West Bank for
Eretz Yisrael even as it gave the Eastern bank, which should ALSO have
been part of Israel, away.
This legal status of this area - in the view of
international law - has not changed to this day. Even the United
Nations partition plan of 1947 was rejected by the Arab world, and on
May 15, 1948, the day the British Mandate over Palestine ended, the
Arabs attacked the newly born state with the
express goal of annihilating it. It should be stressed that the
partition plan was in fact no more than a recommendation, and had no
power to bind the sides, and this too was, as stated, rejected by the
entire Arab world and therefore became null and void in the eyes of
international law. Judea and Samaria are part of the Jewish homeland
Did the Jewish People Lose its Rights to Those Areas of Eretz Israel Lost in
the War of Independence, 1948?
The answer to this question is no. Egypt did not
establish sovereignty over the Gaza Strip and the sovereignty of Jordan
over Judea and Samaria was recognized by only two countries, Britain
and Pakistan. In fact, Jordan never held legal sovereignty over the
areas of Judea and Samaria, and has
relinquished any claims to sovereignty there. The status and rights of
Jordan over the parts of Eretz Israel it occupied for 19 years were at
most the rights of an occupying force.
In consideration of the fact that Israel succeeded
in restoring this territory in a war of defense that had been forced
upon it, while Egypt and Jordan took the same territories by means of
illegal aggression in the War of Independence, Israel's rights over the
areas of Judea and Samaria take
priority over the rights of the hostile Arab countries. These areas,
therefore - from the point of view of international law - never ceased
to be part of the western Eretz Israel designated in its entirety for
the establishment of a national home for the Jewish people, including
of course, the right of Jews to settle in their land as established in
the British Mandate.
Did the End of the British Mandate over Eretz Israel Generate Any Change in
the Rights of the Jewish People Over its Land From the Point of View of
International Law?
The answer to this question is also no. Article 80
of the UN charter was written to defend the validity of rights
determined in the Mandate even after the mandate system no longer
exited. After the areas of western Eretz Israel were liberated from the
Arab occupier in the Six Day War (1967), returning them to the control
of the Jewish people, all the obligations according to international
law remained as they were. The purpose of these areas, after all, was
that they serve as the basis for the establishment of a national home
for the Jewish people.
It is in fact the duty of the Jewish state, which
replaced the British Mandate, to fulfill these obligations. Israel's
status in these territories, therefore, is in no way that of an
occupying force, because in accordance with the outlook that has guided
the State of Israel since its establishment, Israel does not annex
territory that before 1948 was part of mandatory Eretz Israel. (i.e.
Israel does not annex it's own land)
Israel does not consider itself to have the status
of an occupying force because it never considered the Arab countries
that invaded Eretz Israel in May 1948 as having any sovereign rights
over the territory of Eretz Israel they occupied. They were merely
military occupiers. After this territory was restored to the control of
the State of Israel, it became the obligation of the Jewish state -
both from a Jewish Zionist standpoint as well as from the point of view
of international law - to realize the rights of the Jewish people over
the Western part of Eretz Israel in its entirety, including the right
of settlement.
UN Resolution 242 Does Not Require a Return to the
1967 Borders
The media often refers to settlements and the presence of the IDF in
the West Bank and Gaza as "illegal under international law." This is
the Palestinian viewpoint, which is derived from their citation of UN
Resolution 242, which states "the withdrawal of Israel's forces from
territories occupied in the recent conflict [1967]." The authors of
this resolution have stated publicly and repeatedly that they omitted
the words "all territories occupied" and FURTHER, they added
phraseology which called for "an accepted settlement" between the
parties because "all States have the right to live within secure and
recognized boundaries."
It is evident both from the paper reprinted today
and UN Resolution 242 that Israel does INDEED have every right to
sovereignty and settlement in the West Bank and/or Gaza.
The Geneva Convention Does Not Void the Mandate
This position, which views the right of Jewish
settlement in Judea, Samaria and Gaza as anchored in the rules of
international law, is supported by a once-highly placed figure in the
American administration, one of the drafters of the celebrated UN
Resolution 242, a Deputy Secretary of State and professor of
international law, Eugene Rostow. He wrote,
The primary objective of the Palestine Mandate was
different [from the mandate over Arab countries] . . . The Allies
established the Palestine Mandate in order to support the national
liberation of 'the Jewish people' because of 'their historic connection
to the land.' The mandate encouraged the Jews to found a national home
in Palestine, and gave them the right to establish a "National Home" in
Palestine and granted them the right to make close settlements without
prejudice to 'the civil rights and religious rights of the existing
non-Jewish communities in Palestine.' The term 'civil rights' in this
sentence is carefully distinguished from 'political rights.'
The right of the Jewish people to settle in
Palestine has never been terminated for the West Bank . . . The only
way which the mandate right of settlement in the West Bank can be
brought to an end is through the annexation of the area by an existing
state or by the creation of a new one."
Rostow stresses that the right that arose by virtue of the Mandate is
perpetual, as long as the territory of the Mandate is not turned into
an independent state or does not become part of an existing one.
Therefore, from the point of view of international
law, the recognized right of the Jewish people over all areas of
western Eretz Israel is completely valid, including the right to settle
throughout the territory.
Rostow also rejects the claim that the act of
settlement violates article (49)6 of the Fourth Geneva Convention of
1949, which forbids an occupying power from deporting or transferring
parts of its own civilian population into the territory it occupies.
Professor Rostow writes that the settlers
of Judea, Samaria and Gaza were not transferred to live there as a
result of deportation or "transfer." "The Jewish settlers in the West
Bank are most emphatically volunteers," he writes. "They have not been
"deported" or "transferred" to the area by the Government of Israel and
their movement involves none of the atrocious purposes or harmful
effects on the existing population that is the goal of the Geneva
Convention to prevent [deportations for the purpose of extermination,
slave labor, etc.]." (This article was written to ENSURE that another
Holocaust is prevented. ~Shosh)
Furthermore, writes Professor Rostow, the Geneva
Convention applies only to acts by one signatory country "carried out
in the territory of another. The West Bank is not the territory of
signatory power, but an unallocated part of the British Mandate. Even
if the Geneva Convention could be interpreted as to prohibit acts of
settlement during the period of occupation, it can in
no way bring to an end the rights granted by the Mandate. It is hard,
therefore, to see how even the most narrow and literal-minded reading
of the Convention could make it apply to the process of Jewish
settlement in the territory of the British Mandate west of the Jordan
River."
And he continues, "But how can the Convention be
deemed to apply to Jews who do have a right to settle in the
territories under international law? - a legal right assured by treaty
and specifically protected by Article 80 of the United Nations Charter,
generally known as the "Palestine Article." The Jewish right of
settlement in the area is equivalent in every way to the right of the
existing population to live there."
Regarding the Geneva Convention, it should be
pointed out that the willingness of the Government of Israel to
recognize the validity of the Geneva Convention over the areas of
Judea, Samaria and Gaza was merely and exclusively for humanitarian
reasons, and not for any other purpose. Consequently, Moshe Negbi's
claim that "If Israel can annex East Jerusalem, then by the same token,
Egypt can declare tomorrow that New York is part of Egypt," is
completely baseless. New York is part of a sovereign state - the United
States of America - meaning that Egypt cannot declare sovereignty over
it. Judea, Samaria and Gaza, on the other hand, are not part of any
country and furthermore, from the point of view of international law,
belong to the Jewish people.
Accordingly, the State of Israel - the state of the
Jewish people - is entitled to declare sovereignty over the areas which
according to international law belong to it. It certainly has the right
to
allow Jews to settle there, pursuant to international law.
A long list of supporters Moshe Negbi's attempts to
undermine the rights of his own people to their
homeland notwithstanding, Douglas Feith, who served as Deputy Assistant
Secretary of Defense and Middle East specialist on the White House
National Security Council staff during the Reagan administration, holds
a different view. He writes "[Although] the Mandate distinguished
between Eastern and Western Palestine . . . it did not distinguish
between the region of Judea and Samaria and the rest of Western
Palestine. No event and no armistice or other international agreement
has terminated the Mandate-recognized rights of the Jewish people,
including settlement rights, in those portions of the Mandate territory
that have yet to come under the sovereignty of any state.
Those rights did not expire upon the demise of the League of Nations,
the creation of the United Nations, or the UN General Assembly's
adoption of the 1947 UN Special Committee on Palestine plan for Western
Palestine."
Feith explains that if the Jews do not have
recognized legal rights to their claim to Judea and Samaria as part of
their state, then they lack such rights in any part of Eretz Israel
because all the rights derive from "the historical connection of the
Jewish people with Palestine recognized in the
Mandate."
[This is why so many peace supporters in Israel draw the line at
giving away the Temple Mount. The Mount is our strongest
historical connection to the land of Israel and if we give that
away, we give away the BASIS by which ANY LAND in the region is
allocated as a Jewish State. To give away the Mount gives away
the right to a Jewish State at all and paves the way for a legal
overturning of Israel's right to existence."]
He adds that the claim that the Jews do not have a
legal claim to Judea and Samaria could be catastrophic concerning other
claims the Jews have to sovereignty over Israel within its pre-1967
borders.
I have cited here only two experts in international
law who hold this view, but the list of jurists and members of the
administration who support the legality of Jewish settlement in Eretz
Israel is very long and includes such names as Julius Stone, Professor
Yehuda Bloom and others. It could at least be expected that Moshe
Negbi, who undoubtedly is aware of these views, demonstrate some
measure of integrity and acknowledge the existence of the legal
positions with which he is not comfortable and which run counter his
own political views.
In any case, before accusing Israeli governments of
being instrumental in the commission of international crimes, he might
do well to consider this question: Would not the deportation of Jews
from their place of settlement - as the Arabs demand as part of their
call for the dismantling of the
"illegal" settlements - in fact be itself an international crime - as
deportation is termed in international law? Would Mr. Negbi feel
comfortable with the fact that the only place in the world (perhaps
outside of Saudi Arabia) where the policy of "Judenrein" is implemented
de jure and de facto is in the only homeland Jewish people have?
Not only is the right of settlement in the land of Israel an integral part of the Zionist vision - it
is strongly anchored in the precepts of international law.
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