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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

 Legal Status Continued

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."] ** See WHY HEBRON below.

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.

**WHY HEBRON (Insert by Zionsake Editor)
Why the focus on Hebron? Because an integral part of the destruction of Israel in stages is the denial of Jewish historical rights and ties to the Land of Israel. Hebron, with the only intact Second Temple Period structure in the region - where the Patriarchs are buried - is second only to Jerusalem in its Jewish identity.. In fact, its ties to the Jewish People PREDATE Jerusalem itself.

But that's not all. The Hebron model of the sharing of holy places stands in sharp contrast to the Jerusalem model. In Jerusalem, the Moslems have successfully barred Jewish worship anywhere in the area of the Temple Mount.

In sharp contrast Jews and Moslems SHARE the use of Ma'arat Hamachpela - with prayer services usually at adjacent rooms within the structure and with a special arrangement for the entire structure to be used for Moslem or Jewish prayer on their respective special holidays.

The success of this model of sharing is enathema to Arafat because it proves that there is an alternative to the "all-or-nothing" Jerusalem model.

Dr. Aaron Lerner
IMRA'S Weekly Commentary on Israel National Radio 11 October 2001

Broadcast in English on Thursday nights at 10:00 PM on 98.7 FM and on 1539 AM throughout Israel - recording available on http://www.IsraelNationalNews.com and http://www.IsraelNationalRadio.com         (Back)

****

Europe to Tax Israeli Settlement Goods (since the Settlement are in so-called "Occupied" territory)
http://www.palestine-pmc.com/news/new-26-2-02.html
February 26, 2002 Palestine Media Center-PMC

[IMRA: For the territories to have the status of "occupied" there had to be a recognized sovereignty in the territories in 1967 before Israel sent in forces. There was, however, a "sovereignty gap" from 1948 to 1967 in the territories with the status of the territories in limbo since the end of the British Mandate. As a result the legal rather than political arguments concerning settlements are not relevant to this situation.] imra-digest Wednesday, Feb. 27 2002 Volume 01 : Number 555

See Also

----- Original Message -----
From: "Israel Resource News Agency" <media@actcom.co.il> Sent: Saturday 19 October 2002
The West Bank/Gaza Settlements : The Fake Issue of the current Middle East Crisis

By Sara Bedein Staff writer Israel Resource News Agency Jerusalem

More often than not, when you hear news reports that the PLO demands that Israel must remove itself from "all occupied territories". Yet reporters do not bother to ask the PLO what it means by "all occupied territories". Until very recently, it was an accepted norm that the PLO simply wanted Israel to leave the territories that it took during the 1967 war in Judea, Samaria, and Gaza, also known as the west bank and Gaza.

Yet two years have past since the PLO walked out of the Camp David talks, after the previous Israeli Prime Minister, Ehud Barak offered the Palestinians over 95% of the areas taken by Israel during the 1967 war. That offer even included parts of Jerusalem. The PLO walked out of the Camp David talks because their demand for Israel to abandon "illegal settlements" that were built after 1948 in place of the Arab villages that fleeing Arabs had abandoned during the 1948 war.

One of Israel's key negotiators at the Camp David talks, Israel Knesset Foreign Relations and Security Committee Chairman Dan Meridor, remarked in an interview with our agency after the Camp David talks that the Israeli negotiators were startled to discover that the PLO claim for the "right of return" to 1947 was not simply a "negotiating position".

After all, three million Arabs who have dwelt in squalid refugee camps for more than a half century under the premise and promise of the "right of return" can hardly be considered to be a "negotiating position".

Evidence of such can be found in the new school books, official maps and even the new website of the PLO's Palestine National Authority, located at www.palestineremembered.com, where you can discern how Arab villages in a future Palestinian State would replace the Israeli "illegal settlements" such as: Umm Khalid and Bayyarat Hannun - Netanya, Tabsur - Ra'anana, Kafr Sabs - Kfar Sava, Qumya - Kibbutz Ein Charod, Wa'arat al Sarris - Kiryat Ata, Qatra - Gedera, Sarafand al-Kharab and Wadi Hunayn - Nes Tziona, Yibna - Yavne, Abu Kishk - Herzliya, Saqiya - Or Yehuda, Jarisha - Ramat Gan, al-Jammasin al-Gharbi, al-Mas'udiyya, Salama, and al-Shaykh Muwannis - Tel Aviv, al-'Abbasiyya - Savyon, 'Ayn Karim - Ein Karem, Dayr Yassin - Givat Shaul.

From the PLO point of view, the 531 "Illegal Israeli settlements" established after Israel's War of Independece have "ethnically cleansed/destroyed Palestinian villages" within "Occupied Palestine from 1948".

In contrast, communities Jews live in Judea, Samaria, East Jerusalem and the Gaza Strip have been acquired by legal means.

Not one Israeli settlement built on land taken in 1967 has replaced an Arab notion that the Israelis in the west bank or Gaza are sitting on land stolen from the Palestinian Arabs.

-

Meanwhile, lands belonging to Palestinian Arab villagers in the areas taken over by Israel in 1967 generally remain in Palestinian Arab hands. Indeed, many of the Israelis who demand that Israel abandon its settlements in Judea, Samaria, and Katif in Gaza actually dwell in communities that the PLO defines as "illegal settlements".

Meeting with a group of Israelis from 6 west bank Judea settlements in November 1996, Yassir Arafat himself acknowledged the legality of their settlements, since, in Arafat's words, "none of them displaced an Arab village". From Arafat's point of view, the Jews could stay in their settlements, within the framework of Palestinian Arab hegemony.

How did Israel acquire the lands for settlement in the "occupied territories" of 1967?

Professor Yosef Katz, senior faculty member in the Geography Department at Bar Ilan University and author of 13 books on the history of Jewish settlement policies in the land of Israel during the twentieth century, delineates the process of how land was acquired for settlement purposes. "The process of taking possession of the land in the West Bank after 1967 was done in a completely legal fashion. There are three categories for possession of land in the West Bank and Gaza. The first category is purchase of land from Arab land owners. This is a completely legal action." "The second category for taking possession of the land is through what is called 'administrative territories' - which means state owned lands. These state owned lands originally belonged to the Turkish government when Palestine was ruled by the Ottoman Empire (over a 400 year period). Meaning that from the start these were state owned lands - not owned by private individuals - which passed through various hands depending on who was ruling Palestine at the time. Afterwards these lands were transferred to the British when they ruled, then to Jordan when they conquered the territory in 1948 and finally the state lands became Israel's when the area was conquered by Israel in 1967." "Arabs living in the West Bank and Gaza on privately owned land, were encouraged by Israel to continue to hold on to their land and expand, without Israeli intervention".

"There is another category of lands known as "Mawaat" - dead lands: barren rocky lands, public lands. The state is allowed to declare them as its own based on the fact that no one is in possession of them and that they are not cultivated. To determine that these lands do not belong to anyone, the state checks the land registries, ariel photographs showing the lands to be uncultivated and then when convinced that these lands have no ownership, advertises in Arabic in the Arab newspapers that the state has declared these lands as its own and anyone having any kind of legal deed to contest this is invited to do so. If any Arab is able to produce a land deed proving the land is theirs, then the state leaves the land to the Arab. If there are still any doubts, then the issue is taken to court". "The third and smallest category of possession of the land, was the expropriation of the land. The expropriation of land was done legally. This is important to state because all the lands which the Arabs left in 1948 - four million dunams out of which 20 million dunams was land belonging to the State of Israel in pre-1967 were expropriated in the same fashion. Aside from the 12 million dunams of land in the Negev, there were eight million dunams of land left. Four million dunam of that land, i.e. 50% of settled land inside the pre-1967 borders of Israel was land left behind by the fleeing Arabs in 1948."

"These lands were absorbed by Israel under the state's Guardian of Absentee Assets after which the lands were transferred through a law called the "Development Authority law" - The Law for Transferring Assets, 1951. In this way, the lands expropriated were transferred to the hands of the state of Israel. Since this same method was used for the expropriation of lands in the West Bank and Gaza, then if there is any question about it, it needs to be directed also to the lands within the Green Line which were transferred to Israel through the same method. All expropriation of land is part of Israel's legal system. It is done legally."

It is time to speak honestly about the PLO's consistent policy and intent: to overtake the entire land of Israel. The PLO views the entire State of Israel as "conquered Palestine" comprised of two parts: Palestine that was conquered from 1948 and conquered Palestine from 1967. To be fair, the PLO has never concealed its policies. They have stated it in their claims over and over. From the time of the Oslo Accords signed in 1993 the PLO has stated very clearly that it was their full intent to repossess the lands that they claim from 1948.

Successive Israeli governments are no less guilty than the rest of the world in promoting their own rhetoric and an illusion which posits that once the Palestinians have their own state on the "conquered territories from 1967", they will be lay down their weapons of war and live peacefully side by side with the State of Israel in a "New Middle East".

The Jewish settlements in the West Bank and Gaza should not be used as a pawn in settling this issue.

No Israeli offer to cede these Jewish communities will  satisfy the minimal  PLO demands for the return to Arab villages that were wiped off the map more than fifty years ago.

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Prof. Talia Einhorn, of the T.M.C. Asser Institute, an institute for international law in The Hague, writes that the Israeli presence in Yesha does not constitute "occupation," and moreover, that the U.N. Partition Resolution of 1947 that mentions a "new Arab state" is of the "recommendation" type and not the "mandatory" type.

In light of Prime Minister Sharon's recent use of the word "occupation" in reference to Israel's presence in Yesha, and despite his subsequent retraction, Arutz-7's Ruti Avraham quotes Prof. Einhorn's explanation as to why Israel is not an "occupying force" in Yesha:
"Up until 1948, Judea, Samaria and Gaza were a part of the British Mandate. In the 1948 War of Independence, Egypt illegally grabbed the Gaza Strip, and Jordan took Judea and Samaria, the 'West Bank.' Egypt did not claim sovereignty in Gaza, but Jordan deigned, in 1950, to annex Judea and Samaria. This annexation was not recognized by international law. The Arab nations objected to it, and only Britain and Pakistan recognized it and Britain did not recognize the annexation of eastern Jerusalem. In 1967, after the Six Day War, these territories - which were originally meant for the Jewish Nation's National Home according to the Mandate Charter - returned to Israeli control." Einhorn adds that in 1988, King Hussein of Jordan rescinded its legal and administrative ties to Judea and Samaria.

"According to international law," Einhorn writes, "Israel has full right to try to populate the entire Land of Israel with dense Jewish settlement, and thus actualize the principles set by the League of Nations in the original Mandate Charter of San Remo in 1920. At that time, the mandate to the Land of Israel was granted to the British, and the introduction to the mandate charter states clearly that it is based on the international recognition of the historic ties between the Jewish People and the Land of Israel. Clause II of that mandate charges Britain with 'ensuring the existence of political, administrative, and economic conditions that will guarantee the establishment of the Jewish national home in the Land of Israel.'"

"Even the White Paper of 1922," she continues, "which restricted Jewish immigration to the land, emphasized the Jewish Nation's rights to the national home in the Land of Israel - while at the same time tearing away almost 80% of the mandate's area on the eastern side of the Jordan and giving it to Emir Abdullah."

Prof. Einhorn says that there is nothing in international law that requires a Palestinian state between the Jordan River and the Mediterranean - not even the UN Partition Resolution of Nov. 29, 1947. That resolution states that "independent Arab and Jewish States and the Special International Regime for the City of Jerusalem" shall come into existence in Palestine. However, Prof. Einhorn notes the widely-overlooked fact that the introduction to the resolution states specifically that it is merely a "recommendation" and nothing more: "[The General Assembly] recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future Government of Palestine, of the Plan of Partition with Economic Union set out below."

The fact that the Arab states did not accept the Partition Plan, explains Prof. Einhorn, voids the recommendation of any legal basis.

She further writes that Resolutions 242 and 338, which call for negotiations and a "withdrawal from territories" (not "withdrawal from the captured in 1967, are similarly "recommendations." These resolutions were drawn up under the UN Charter's Clause VI, which deals with non-mandatory recommendations - as opposed to Clause VII resolutions, "which are mandatory, and which deal with a threat to world peace, such as those taken earlier this year against Iraq."
Arutz Sheva News Service. May 29, 2003
http://www.IsraelNationalNews.com

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