Resolved: are the settlements legal? Israeli West Bank policies

Resolved: are the settlements legal? Israeli West Bank policies

By Eugene W. Rostow

Copyright 1991 The New Republic Inc.

The New Republic, October 21, 1991

Assuming the Middle East conference actually does take place, its
official task will be to achieve peace between Israel and its Levantine
neighbors in accordance with Security Council Resolutions 242 and 338.
Resolution 242, adopted after the Six-Day War in 1967, sets out criteria for
peace-making by the parties; Resolution 338, passed after the Yom Kippur War
in 1973, makes resolution 242 legally binding and orders the parties to carry
out its terms forthwith.
Unfortunately, confusion reigns, even in high places, about what those
resolutions require.

For twenty-four years Arab states have pretended that the two
resolutions are "ambiguous" and can be interpreted to suit their desires.
And some European, Soviet and even American officials have cynically allowed
Arab spokesman to delude themselves and their people--to say nothing of
Western public opinion--about what the resolutions mean. It is common even
for American
journalists to write that Resolution 242 is "deliberately ambiguous," as
though the parties are equally free to rely on their own reading of its key
provisions.

Nothing could be further from the truth. Resolution 242, which as
undersecretary of state for political affairs between 1966 and 1969 I helped
produce, calls on the
parties to make peace and allows Israel to administer the territories it
occupied in 1967 until "a just and lasting peace in the Middle East" is
achieved. When such a peace is made, Israel is required to withdraw its armed
forces "from territories" it occupied during the Six-Day War--not from "the"
territories nor from "all" the territories, but from some of the territories,
which included the Sinai Desert, the West
Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.

Five-and-a-half months of vehement public diplomacy in 1967 made it
perfectly clear what the missing definite article in Resolution 242 means.
Ingeniously drafted
resolutions calling for withdrawals from "all" the territories were defeated
in the Security Council and the General Assembly. Speaker after speaker made
it explicit that Israel was not to be forced back to the "fragile" and
"vulnerable" Armistice Demarcation Lines, but should retire once peace was
made to what Resolution 242 called "secure and recognized" boundaries, agreed
to by the parties. In
negotiating such agreements, the parties should take into account, among
other factors, security considerations, access to the international waterways
of the region,
and, of course, their respective legal claims.

Resolution 242 built on the text of the Armistice Agreements of 1949,
which provided (except in th case of Lebanon) that the Armistice Demarcation
Lines separating the military forces were "not to be construed in any sense"
as political or territorial boundaries, and that "no provision" of the
Armistice Agreements "Shall in any way prejudice the right, claims, and
positions" of the parties "in the ultimate peaceful settlement of the
Palestine problem." In making peace with Egypt in 1979, Israel withdrew from
the entire Sinai, which had never been part of the British Mandate.

For security it depended on patrolled demilitarization and the huge area of
the desert rather than on territorial change. As a result, more than 90
percent of the territories Israel occupied in 1967 are now under Arab
sovereignty. It is hardly surprising that some Israelis take the view that
such a transfer fulfills the territorial requirements of Resolution 242, no
matter how narrowly they are construed.

Resolution 242 leaves the issue of dividing the occupied areas between
Israel and its neighbors entirely to the agreement of the parties in
accordance with the principles it sets out. It was, however, negotiated with
full realization that the problem of establishing "a secure and recognized"
boundary between Israel and Jordan would be the thorniest issue of the
peace-making process. The United States has remained firmly opposed to the
creation of a third Palestinian state on the territory of the Palestine
Mandate. An independent Jordan or a Jordan linked in an economic union with
Israel is desirable from the point of view of everybody's security and
prosperity. And a predominantly Jewish Israel is one of the fundamental goals
of Israeli policy. It
should be possible to reconcile these goals by negotiation, especially if the
idea of an economic union is accepted.

The Arabs of the West Bank could constitute the population of an
autonomous province of Jordan or of Israel, depending on the course of the
negotations.
Provisions for a shift of populations or, better still, for individual
self-determination are a possible solution for those West Bank Arabs who
would prefer to live elsewhere. All these approaches were explored in 1967
and 1968. One should note, however, that Syria cannot be allowed to take over
Jordan and the West Bank, as it tried to do in 1970.

The heated question of Israel's settlements in the West Bank during the
occupation period should be viewed in this perspective. The British Mandate
recognized the right of the Jewish people to "close settlement" in the whole
of the Mandated territory. It was provided that local conditions might
require Great Britain to "postpone" or "withhold" Jewish settlement in what
is now Jordan. This was done in 1922. But the Jewish right of settlement in
Palestine west of the Jordan river, that is, in Israel, the West Bank,
Jerusalem, and the Gaza Strip, was made unassailable. That right has never
been terminated and cannot be terminated except by a
recognized peace between Israel and its neighbors. And perhaps not even then,
in view of Article 80 of the U.N. Charter, "the Palestine article," which
provides that
"nothing in the Charter shall be construed ... to alter in any manner the
rights whatsoever of any states or any peoples or the terms of existing
international instruments...."

Some governments have taken the view that under the Geneva Convention of
1949, which deals with the rights of civilians under military occupation,
Jewish
settlements in the West Bank are illegal, on the ground that the Convention
prohibits an occupying power from flooding the occupied territory with its
own citizens. President Carter supported this view, but President Reagan
reversed him, specifically saying that the settlements are legal but that
further settlements should be deferred since they pose a psychological
obstacle to the peace process.

In any case, the issue of the legality of the settlements should not come
up in the proposed conference, the purpose of which is to end the military
occupation by
making peace. When the occupation ends, the Geneva Convention becomes
irrelevant. If there is to be any division of the West Bank between Israel
and Jordan, the Jewish right of settlement recognized by the Mandate will
have to be taken into account in the process of making peace.

This reading of Resolution 242 has always been the keystone of American
policy. In launching a major peace initiative on September 1, 1982, President
Reagan said, "I have personally followed and supported Israel's heroic
struggle for survival since the founding of the state of Israel thirty-four
years ago: in the pre-1967 borders, Israel was barely ten miles wide at its
narrowest point. The bulk of Israel's population lived within artillery range
of hostile Arab armies. I am not about to ask Israel to live that way again."

Yet some Bush administration statements and actions on the Arab-Israeli
question, and especially Secretary of State James Baker's disastrous speech
of May 22, 1989, betray a strong impulse to escape from the resolutions as
they were negotiated, debated, and adopted, and award to the Arabs all the
territories between the 1967 lines and the Jordan river, including East
Jerusalem. The Bush administration seems to consider the West Bank and the
Gaza Strip to be "foreign" territory to which Israel has no claim. Yet the
Jews have the same right to settle there as they have to settle in Haifa. The
West Bank and the Gaza Strip were
never parts of Jordan, and Jordan's attempt to annex the West Bank was not
generally recognized and has now been abandoned. The two parcels of land are
parts of the Mandate that have not yet been allocated to Jordan, to Israel,
or to any other state, and are a legitimate subject for discussion.

The American position in the coming negotiations should return to the
fundamentals of policy and principle that have shaped American policy towards
the Middle East for three-quarters of a century. Above all, rising above
irritation and pique, it should stand as firmly for fidelity to law in
dealing with the Arab-Israeli dispute as President Bush did during the Gulf
war. Fidelity to law is the essence of peace, and the only practical rule for
making a just and lasting peace.

EUGENE V. ROSTOW is a Distinguished Fellow at the United States
Institute of Peace.

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Israeli Settlement and the Geneva Convention

Eugene Rostow 's letter to NYT in April '92

Israeli Settlement and the Geneva Convention

To the Editor:

I apologize for an error in "Agreements Don't Bar West Bank
Settlements" (letter, March 18), on the legality of Israeli settlements
in the West Bank, which states that "international lawyers differ on
whether the 1949 Geneva Convention applies to the Israeli occupation of
the West Bank, because Israel is not a signatory." Both Israel and
Jordan did sign and ratify the convention, Israel with a reservation.

The error does not affect my argument, however. Article 2 of the
convention provides that the agreement applies "to all cases of partial
or total occupation of the territory of a high contracting party." Thus
the convention cannot apply because the West Bank, East Jerusalem and
the Gaza Strip have never been generally recognized as territories of
Jordan. Jordan administered them as a belligerent occupant between 1948
and 1967 after a war of aggression against Israel in 1948. Jordan's
attempt to annex these areas in 1950 was recognized only by Britain
(except for Jerusalem) and perhaps by Pakistan.

In any event, Jordan has formally renounced whatever claims it may
have had to the territory, which is a residual part of the Palestine
Mandate and therefore subject to the rights of "the Jewish people" to
make "close settlement" on the land. I regard this aspect of the
controversy as legally more important than arguments based on the
Geneva Convention.

EUGENE V. ROSTOW, Distinguished Fellow, United States Institute of Peace

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What Weight to Conquest?

Justice

In

International Law

Selected Writing of

(not written in any of his former
official capacity)

Stephen M. Schwebel

Judge of International Court of Justice

Judge Schwebel has
served on the Court since 15 January 1981. He was Vice-President of the Court
from 1994 to 1997 and has been President since 6 February 1997. A former Deputy
Legal Adviser of the United States Department of State and Burling Professor of
International Law at the School of Advanced International Studies of The John
Hopkins University (Washington), Judge Schwebel is the author of three
books and some 150 articles on problems of international law and organization.
See:

http://www.lawschool.cornell.edu/library/cijwww/icjwww/ipresscom/iPress1999/ipresscom9954_19991215.htm

What Weight to Conquest?

Pages 521-526

In his admirable address of
December 9, 1969, on the situation in the Middle East, Secretary of State William
P. Rogers took two positions of particular international legal interest, one
implicit and the other explicit.[1] Secretary Rogers called upon
the Arab States and Israel to establish "a state of peace ... instead of
the state of belligerency, which has characterized relations for over 20
years." Applying this and other elements of the American approach to the
United Arab Republic and Israel, the Secretary of State suggested that,
"in the context of peace and agreement [between the UAR and Israel] on
specific security safeguards, withdrawal of Israeli forces from Egyptian
territory would be required."[2]

Secretary Rogers accordingly
inferred that, in the absence of such peace and agreement, withdrawal of
Israeli forces from Egyptian territory would not be required. That is to say,
he appeared to uphold the legality of continued Israeli occupation of Arab
territory pending "the establishment of a state of peace between the
parties instead of the state of belligerency."[3] In this
Secretary Rogers is on sound ground. That ground may well be based on
appreciation of the fact that Israel's action in 1967 was defensive, and on the
theory that, since the danger in response to which defensive action was taken
remains, occupation - though not annexation - is justified, pending a peace
settlement. But Mr. Rogers's conclusion may be simply a pragmatic judg­ment
(indeed, certain other Permanent Members of the Security Council, which are not
likely to share the foregoing legal perception, are not now pressing for
Israeli withdrawal except as an element of a settlement).

More questionable, however, is
the Secretary of State's explicit conclusion on a key question of the law and
politics of the Middle East dispute: that "any changes in the pre-existing
[1949 armistice] lines should not reflect the weight

AGGRESSION, COMPLIANCE, AND
DEVELOPMENT

of conquest and should be confined to insubstantial
alterations required for mutual security. We do not support expansionism."
Secretary Rogers refer­red approvingly in this regard to the Security Council's
resolution of November 1967, which,

Emphasizing the
inadmissibility of the acquisition of territory by war[4] and the need to work for a just
and lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the
Charter of the United Nations have undertaken a commitment to act in accordance
with Article 2 of the Charter,

1.
Affirms that the fulfillment of Charter principles requires the establishment
of a just and lasting peace in the Middle East which should include the
application of both the following principles:

(i) Withdrawal of Israeli armed
forces from territories occupied in the recent conflict;[5]

(ii)
Termination of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace within
secure and recognized boundaries free from threats or acts of force; ..."[6]

It is submitted that the
Secretary's conclusion is open to question on two grounds: first, that it fails
to distinguish between aggressive conquest and defensive conquest; second, that
it fails to distinguish between the taking of territory which the prior holder
held lawfully and that which it held unlawfully. These contentions share common
ground.

As a general principle of international law, as
that law has been reformed

What Weight to Conquest?

since the League, particularly
by the Charter, it is both vital and correct to say that there shall be no
weight to conquest, that the acquisition of territory by war is inadmissible.[7] But that principle must be
read in particular cases together with other general principles, among them the
still more general principle of which it is an application, namely, that no legal right shall spring
from a wrong, and the Charter principle that the Members of the United Nations
shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State. So
read, the distinctions between aggressive conquest and defensive conquest,
between the taking of territory legally held and the taking of territory
illegally held, become no less vital and correct than the central principle
itself.

Those distinctions may be summarized as
follows: (a) a State acting in lawful exercise of its right of self-defense may
seize and occupy foreign territory as long as such seizure and occupation are
necessary to its self ­defense; (b) as a condition of its withdrawal from such
territory, that State may require the institution of security measures
reasonably designed to ensure that that territory shall not again be used to
mount a threat or use of force against it of such a nature as to justify
exercise of self-defense; (c) where the prior holder of territory had seized
that territory unlawfully, the State which subsequently takes that territory in
the lawful exercise of self-defense has, against that prior holder, better
title.

The facts of the June 1967 "Six
Day War" demonstrate that Israel reacted defensively against the threat
and use of force against her by her Arab neighbors. This is indicated by the fact
that Israel responded to Egypt's prior closure of the Straits of Tiran, its
proclamation of a blockade of the Israeli port of Eilat, and the manifest
threat of the UAR's use of force inherent in its massing of troops in Sinai,
coupled with its ejection of UNEF. It is indicated by the fact that, upon
Israeli responsive action against the UAR, Jordan initiated hostilities against
Israel. It is suggested as well by the fact that, despite the most intense
efforts by the Arab States and their supporters, led by the Premier of the
Soviet Union, to gain condemnation of Israel as an aggressor by the hospitable
organs of the United Nations, those efforts were decisively defeated. The conclusion to which these
facts lead is that the Israeli conquest of Arab and Arab-held territory was
defensive rather than aggressive conquest.

The
facts of the 1948 hostilities between the Arab invaders of Palestine and the nascent State of Israel
further demonstrate that Egypt's seizure of the Gaza Strip, and Jordan's
seizure and subsequent annexation of the West Bank and

AGGRESSION, COMPLIANCE, AND
DEVELOPMENT

the old city of Jerusalem, were
unlawful. Israel was proclaimed to be an independent State within the
boundaries allotted to her by the General Assembly's partition resolution. The Arabs of Palestine and of
neighboring Arab States rejected that resolution. But that rejection was
no warrant for the invasion by those Arab States of Palestine, whether of
territory allotted to Israel, to the projected, stillborn Arab State or to the
projected, international­ized city of Jerusalem. It was no warrant for attack by
the armed forces of neighboring Arab States upon the Jews of Palestine, whether
they resided within or without Israel. But that attack did justify Israeli defensive measures,
both within and, as necessary, without the boundaries allotted her by the partition
plan (as in the new city of Jerusalem). It follows that the Egyptian
occupation of Gaza, and the Jordanian annexation of the West Bank and
Jerusalem, could not vest in Egypt and Jordan lawful, indefinite control,
whether as occupying Power or sovereign: ex injuria jus non oritur.

If the
foregoing conclusions that (a) Israeli action in 1967 was defensive and (b)
Arab action in 1948, being aggressive, was inadequate to legalize Egyptian and
Jordanian taking of Palestinian territory, are correct, what follows?

It follows that the application of the
doctrine of according no weight to conquest requires modification in double
measure. In the first place, having regard to the consideration that, as
between Israel, acting defensively in 1948 and 1967, on the one hand, and her
Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has
better title in the territory of what was Palestine, including the whole of
Jerusalem, than do
Jordan and Egypt (the UAR indeed has, unlike Jordan, not asserted sovereign
title), it follows that
modifications of the 1949 armistice lines among those States within former
Palestinian territory are lawful (if not necessarily desirable), whether those
modifications are, in Secretary Rogers's words, "insubstantial alterations
required for mutual security" or more substantial alterations - such as
recognition of Israeli sovereignty over the whole of Jerusalem.[8] In the second place, as
regards territory bordering Palestine, and under unquestioned Arab sovereignty
in 1949 and thereafter, such as Sinai and the Golan Heights, it follows not
that no weight shall be given to conquest, but that such weight shall be given
to defensive action as is reasonably required to ensure that such Arab
territory will not again be used for aggressive purposes against Israel. For
example - and this appears to be envisaged both by the Secretary of State's
address and the resolution of the Security Council - free navigation through
the Straits of Tiran shall be effectively guaranteed and demilitarized zones
shall be established.

What Weight to Conquest?

The foregoing analysis accords not only with the terms of the United Nations Charter,
notably Article 2, paragraph 4, and Article 51, but law and practice as they
have developed since the Charter's conclusion. In point of practice, it is
instructive to recall that the Republic of Korea and indeed the United Nations
itself have given considerable weight to conquest in Korea, to the extent of
that substantial territory north of the 38th parallel from which the aggressor
was driven and remains excluded - a territory which, if the full will of the
United Nations had prevailed, would have been much larger (indeed, perhaps the
whole of North Korea). In point of law, pro­visions of the Vienna Convention on
the Law of Treaties are pertinent. Article 52 provides that: "A treaty is void if its
conclusion has been procured by the threat or use of force in violation of the
principles of international law embodied in the Charter of the United
Nations" - a provision which clearly does not debar conclusion of a
treaty where force has been applied, as in self-defense, in accordance with the
Charter. And Article 75 provides that: "The provisions of the present
Convention are without prejudice to any obligation in relation to a treaty
which may arise for an aggressor State in consequence of measures taken in
conformity with the Charter of the United Nations with reference to that
State's aggression."

The state of the law has
been correctly summarized by Elihu Lauterpacht, who points out that

territorial change cannot
properly take place as a result of the unlawful use of force. But to omit the word
"unlawful" is to change the substantive content of the rule and to
turn an important safeguard of legal principle into an aggressor's charter.
For if force can never be used to effect lawful territory change, then, if
territory has once changed hands as a result of the unlawful use of force, the
illegitimacy of the position thus established is sterilized by the prohibition
upon the use of force to restore the lawful sovereign. This cannot be regarded
as reasonable or correct.[9]

---

First
published in American Journal of International Law (1970), 64

[1] The
text is published in full in New York Times, December 11, 1969, p. 16.

[2] Ibid.

[3] Ibid

[4] The
resolution's use of the word "war" is of interest. The June 1967
hostilities were not marked by a declaration of war. Certain Arab States have
regarded themselves at war with Israel - or, at any rate, in a state of
belligerency - since 1948, a questionable position under the law of the
Charter. In view of the defeat in the United Nations organs of resolutions
holding Israel to have been the aggressor in 1967, presumably the use of the
word "war" was not meant to indicate that Israel's action was not in
exercise of self-defense. It may be added that territory would not in any event
be acquired by war, but, if at all, by the force of treaties of peace.

[5] It should be
noted that the resolution does not specify "all territories" or
"the territories" but "territories." The subparagraph
immediately following is, by way of contrast, more comprehensively cast,
specifying "all claims or states of belligerency."

[6]
Resolution
242 (1967) of November 22, 1967; 62 AJIL 482 (1968). President Johnson, in an address
of September 10, 1968, declared:

We are not the ones to say where other nations should draw
the lines between them that will assure each the greatest security. It is
clear, however, that a return to the situation of June 4, 1967, will not bring
peace. There must be secure and there must be recognized borders ...

At the same time, it
should be equally clear that boundaries cannot and should not reflect the
weight of conquest. Each change must have a reason which each side, in honest
negotiation, can accept as part of a just compromise. (59 Department of State
Bulletin 348 [1968])

[7] See, however, Kelsen (2nd ed. by Tucker), Principles of
International Law (1967), pp. 420-433.

[8] It should be
added that the armistice agreements of 1949 expressly preserved the territorial
claims of all parties and did not purport to establish definitive boundaries
between them.

[9] Elihu Lauterpacht, Jerusalem
and the Holy Places, Anglo-Israel Association, Pamphlet No. 19
(1968), p. 52.

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Israel and the Settlements

IsraelBehindTheNews.com 30th August, 2001 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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Defensible Borders

June 29, 1967

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Defensible Borders Memorandum for the Secretary of Defense Subject: Middle East Boundaries Signed: Earle G. Wheeler, Chairman, Joint Chiefs of Staff, 29 June 1967 Appendix: Discussion of Key Israeli Border Issues; Map Ed. Note: The following memorandum was declassified in 1984 and "Security Affairs" published it then. Now, as the U.S., Israel, Jordan and other interested parties discuss the possibility of and the conditions for an international peace conference, the chief purpose of which is to settle border issues between Jordan and Israel, it is important to review the U.S. Joint Chiefs of Staff assessment of secure borders for Israel, as well as specifying adjustments in the 1949 armistice lines needed to make Israel militarily defensible. A check with the Pentagon indicated that no revision of this memorandum has occurred or has been completed. Memorandum for the Secretary of Defense Subject: Middle East Boundaries 1. Reference is made to your memorandum, dated 19 June 1967, subject as above, which requested the reviews of the Joint Chiefs of Staff, without regard to political factors, on the minimum territory, in addition to that held 4 June 1967, Israel might be justified in retaining in order to permit a more effective defense against possible conventional Arab attack and terrorist raids. 2. From a strictly military point of view, Israel would require the retention of some captured territory in order to provide militarily defensible borders. Determination of territory to be retained should be based on accepted tactical principles such as control of commanding terrain, use of natural obstacles, elimination of enemy-held salients, and provisions of defense in-depth for important facilities and installations. More detailed discussions of the key border areas mentioned in the reference are contained in the Appendix hereto. In summary, the views of the Joint Chiefs of Staff regarding these areas are as follows. a. The Jordanian West Bank. Control of the prominent high ground running north-south through the middle of West Jordan generally east of the main north-south highway along the axis Jenin-Nablus-Bira-Jerusalem and the southeast to a junction with the Dead Sea at the Wadi el Daraja would provide Israel with a militarily defensible border. The envisioned defensive line would run just east of Jerusalem; however, provision could be made for internationalization of the city without significant detriment to Israel's defensive posture. b. Syrian Territory Contiguous to Israel. Israel is particularly sensitive to the prevalence of terrorist raids and border incidents in this area. The presently occupied territory, the high ground running north-south on a line with Qnaitra about 15 miles inside the Syrian border, would give Israel control of the terrain which Syria has used effectively in harassing the border area. c. The Jerusalem Latrun Area. See subparagraph 2a above. d. The Gaza Strip. By occupying the Gaza Strip, Israel would trade approximately 45 miles of hostile border for eight. Configured as it is, the strip serves as a salient for introduction of Arab subversion and terrorism, and its retention would be to Israel's military advantage. e. The Negev-Sinai Border. Except for retention of the demilitarized zone around Al Awja, and some territory for the protection of the port of Eilat, discussed below, continued occupation of the Sinai would present Israel with problems outweighing any military gain. f. The Negev-Jordan-Aqaba-Strait of Tiran Area. Israel's objectives here would be innocent passage through the Gulf of Aqaba and protection of its port at Eilat. Israel could occupy Sharm ash-Shaykh with considerable inconvenience but could rely on some form of internationalization to secure free access to the gulf. Failing this, Israel would require key terrain in the Sinai to protect its use of the Strait of Tiran. Eilat, situated at the apex of Israel's narrow southern tip, is vulnerable to direct ground action from Egyptian territory. Israel would lessen the threat by retention of a portion of the Sinai Peninsula south and east of the Wadi el Gerafi then east to an intersection with the Gulf of Aqaba at approximately 20/20' north latitude. 3. It is emphasized that the above conclusions, in accordance with your terms of reference, are based solely on military considerations from the Israeli point of view. For the Joint Chiefs of Staff Signed Earle G. Wheeler Appendix 1. The Jordanian West Bank a. Threat. The Jordanian-Israeli border is 330 miles in length-extending from the Gulf of Aqaba northward to the Dead Sea, thence following the armistice demarcation lines and the Jordan River to the Syrian frontier. This border area has traditionally been lightly held by military forces and defenses consisted mainly of small, widely separated outposts and patrols and, therefore, afforded and area where launching of saboteurs and terrorists into Israel was relatively easy. During the period January 1965 to February 1967, a total of 53 incidents of sabotage and mining activity took place along this border. These activities resulted in three killed, 35 wounded, and damage to houses, roads, bridges, railroads and water and electric power installations in Israel. Instances of exchange of small arms fire occurred quite frequently. The majority of these events took place from the Mount Hebron and Aravah areas where the Jordanian authorities did not take sufficient measure to protect against line crosses and saboteurs. The high ground running through the middle of West Jordan overlooks Israel's narrow midsection and offers a route for a thrust to the sea which would split the country in two parts. b. Requirements. A boundary along the commanding terrain overlooking the Jordan River from the west could provide a shorter defense line. However, as a minimum, Israel would need a defense line generally along the axis Bardala-Tubas-Nablus-Bira-Jerusalem and then to the northern part of the Dead Sea. This line would widen the narrow portion of Israel and provide additional terrain for the defense of Tel Aviv. It would provide additional buffer for the air base at Beersheba. In addition, this line would give a portion of the foothills to Israel and avoid interdiction by artillery in the Israeli villages in the lowlands. This line would also provide a shorter defense line than the border of 4 June 19 67 and would reduce the Jordanian salient into Israel. It also provides adequate lines of communication for lateral movement. 2. Syrian Territory Contiguous to Israel a. Threat. The border between Syria and Israel extends approximately 43 miles. It extends from a point on the Lebanese-Syrian border to the vicinity of Baniyas, south to Lake Tiberias, the south along the eastern short of the lake to the Syrian-Jordanian border. During the period January 1965 to February 1967, a total of 28 sabotage and terrorist acts occurred along this border. In addition, there were numerous shellings of villages from the high ground overlooking the area southeast of Lake Tiberias. Casualties were seven killed and 18 wounded. Control of the dominant terrain affords Syria a military route of approach into northern Israel; however, the greatest threat in this sector is from terrorism and sabotage. b. Requirement. Israel must hold the commanding terrain east of the Bounday of 4 June 1967, which overlooks the Galilee area. To provide a defense in-depth, Israel would need a strip about 15 miles wide extending from the border of Lebanon to the border of Jordan. This line would provide protection for the Israeli villages on the east bank of Lake Tiberias but would make defending forces east of the lake vulnerable to a severing thrust from Jordan to the southern tip of the lake. The Israelis would probably decide to accept this risk. As a side effect, this line would give the Israelis control of approximately 35 miles to the Trans Arabian pipeline. 3. The Jerusalem-Latrun Area a. Threat. These areas have been the scenes of intermittent trooubl3e over the years as both Jordanians and Israelis have been illegally cultivating lands in the area between the lines. Only one serious incident occurred in this area during the period January 1965 to February 1967. b. Requirement. To defend the Jerusalem area would require that the boundary of Israel be positioned to the east of the city to provide for the organization of an adequate defensive position. On the other hand, if Jerusalem were to be internationalized under the United Nations, a boundary established west of the city could be defended in accordance with the concept of paragraph 1, above. 4. The Gaza Strip a. Threat. During the period 1948-1956, prior to the Suez war, Egypt mounted numerous infiltration's and terrorist raids from the Gaza Strip. However, with the establishment of the United Nations Emergency Force in 1957, based in the Gaza Strip and along the Sinai border, the situation has been quiet. Only three events of sabotage occurred in this area during the period January 1965 to February 1967. The Strip, under Egyptian control, provides a salient into Israel a little less than 30 miles long and four to eight miles wide. It has served as a training area for the Palestine Liberation Army and, despite the few incidents arising in this area of late, it is significant to note that one of the first actions by the Israelis in the recent conflict was to seal off the area from the Sinai. 5. The Negev-Sinai Border a. Threat. This area has not presented any border problems since establishment of the United Nations Emergency Force in 1957. The demilitarized zone around Al Awja, containing the main north-south, east-west road junction in eastern Sinai and the major water source in the area, is the principal feature providing military advantage. b. Requirement. Except for an adjustment of a portion of that boundary tied to the defense of Eilat, discussed below, and retention of the demilitarized zone around Al Awja, no need is seen for Israeli retention of occupied territory in the Sinai. 6. The Negev-Jordan-Aqaba-Strait of Tiran a. Threat. There were only five incidents of sabotage in this area during the period January 196 5 to February 1967. Israel's chief concern in this area is free access through the Strait of Tiran and the Gulf of Aqaba and the protection of Eliat, Israel's chief oil port and trade link with the West African counties. Eilat, being at the apex of Israel's southern tip, is vulnerable to interdiction from Egyptian territory. b. Requirements. To provide Israel with sufficient depth to protect the boundary should be established approximately 20 miles to the west along the Wadi el Gerafi, south to its head waters, then east to a point on the Gulf of Aqaba at approximately 29/20' north-south latitude. In the event of an international guarantee for free passage of the Strait of Tiran and the Gulf of Aqaba is provided, provided, Israel would feel compelled to occupy key terrain in order to contain the entrance to the Strait.

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