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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

ISRAEL 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 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. (See IMRA comment.)

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.

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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.

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