RESOURCE REVIEW: AUGUST 30, 2001
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
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
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 ."
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.
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