JUDEA AND SAMARIA
THE LEGALITY OF ISRAEL’S “LIBERATED LAND GRAB”
A plan to build homes for Jews triggers international outrage. A scheme to build homes for east Jerusalem’s Arab populations is virtually ignored by the international media? Why the disparity?
When Israel recently declared its intention to develop 400 hectares of land in Gush Etzion (an area settled before 1947, destroyed by the Arab Legion in 1948 and recaptured in 1967), the world loudly condemned it as a “land grab.” But when Jerusalem’s building committee announced 2,200 new homes for Arabs in the east Jerusalem neighbourhood of Arav al-Swahara, there was almost total silence.
The message is loud and clear. Despite residing in the land of Judea and Samaria for millennia, today’s Jews are now forbidden to live there at all. Arabs, on the other hand, are endowed with a natural entitlement to “Palestine.” It is no surprise, then, that the Obama administration has officially demanded Israel reverses its land appropriation in Gush Etzion, saying it is counterproductive to the so-called peace process.
If Obama had any sense he would he see that Israel’s appropriation of land is both practically and legally comprehensible. Israel’s decision to bring the land under state control is simply an attempt to create contiguity between the Green Line and the settlements in Betar Ilit, Kfar Etzion and Gevaot. It is widely understood that this land will one day form part of an agreed land swap between Israel and the Palestinians.
Plus, if Obama knew his history (and he obviously doesn’t) he would know that the “West Bank” is unclaimed land. Contrary to popular opinion, Israeli settlements are entirely legal as long as they are within the parameters of the 1922 Mandate of Palestine. This is the same mandate that legalized and encouraged the immigration of Jews to all parts of historic Israel.
Israel’s critics may be surprised to know that the 1922 Mandate has never been superseded in international law, not even by the United Nation’s 1947 partition plan. Because the Arabs refused to recognize the partition of “Palestine,” the legal status of Judea and Samaria reverted back to the 1922 law . The capture of Judea and Samaria from Jordan in 1967 was the first step in the restoration of the territory’s true legal status. It also means that Israel’s recent “land grab” is actually the fulfilment of the original 1922 Mandate.
(Quoting the Fourth Geneva Convention to argue that the settlements are in fact illegal is nonsensical. The Fourth Geneva Convention pertains only to cases of occupation of a sovereign entity. Because of the Arab refusal to reach an agreement between 1947 and 1949, the area popularly referred to as the West Bank never became the legal territory of any sovereign entity – not even Jordan, despite its occupation of the territory until 1967. Only Israel has a legal entitlement to Judea and Samaria.)
If anyone is in any doubt, they would do well to consult a document boasting the signatures of over 1,000 respected diplomats and legal experts from around the world, ranging from South Africa and Canada to Norway and Brazil. The file was delivered to the EU’s foreign policy chief Catherine Ashton in the form of a petition just over a year ago.
According to these legal experts, it is factually incorrect to refer to the settlements as illegal for the simple reason that the term “1967 lines” does not exist in international law. The pre-1967 lines are in fact 1949 armistice lines, and are not recognized lines or security lines. Moreover, the issue of borders is on the agenda of the peace talks and is subject to final status negotiations.
All of which means that the Palestinian claim that statehood is an unassailable right should not be taken at face value. Arab hatred of Israel has never been about the settlements or even about land. The primary obstacle is an ideological refusal to recognize the Jewish people’s deep-rooted historic, cultural and legal connections to the entire land of Israel. Until the Arabs and the rest of the world accept that the Jews have an inalienable and legal right to live in Judea and Samaria, there will never be peace.
First published on September 10 for the Jewish Media Agency
JEWISH SETTLEMENTS ARE LEGAL, EU IS TOLD
A petition, containing the signatures of over 1,000 respected diplomats and legal experts from around the world, has been delivered to the EU’s foreign policy chief Catherine Ashton.
According to the text of the petition, the EU is wrong to believe that Jewish settlements in Judea and Samaria are illegal, and that the term “1967 lines” does not exist in international law.
Legal scholars from South Africa, the US, Canada, Australia, New Zealand, Taiwan, Singapore, India, Greece, Malta, Holland, Norway, Czechoslovakia, Ireland, Switzerland, Sweden, Italy, Belgium, Bolivia, Chile, Brazil, Mexico and Peru, have signed the petition.
The man responsible for the petition is British-born Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs.
It comes as the EU considers whether to introduce separate labeling for products made by Jews in Judea and Samaria, a policy that would apply to all 28 EU member states.
In an interview with Israeli news organization Arutz Sheva, Mr Baker explained why it is incorrect to distinguish between Israel and Judea and Samaria, saying there is “no such thing” as the 1967 lines.
“There never was such a thing. The matter of the borders is on the agenda of the negotiations. The EU cannot dictate a subject that is on the agenda of the negotiations. The pre-1967 lines are [1949] armistice lines. These are not recognized lines or security lines. In the Oslo process, it was agreed between us and the Palestinians that the matter of borders will be negotiated.”
He continued: “The term ‘1967 lines’ does not appear anywhere in our agreement with the Palestinians, therefore it is a legal and factual aberration to determine that these are our lines.”
Mr Baker also told Arutz Sheva that the settlements should be considered legal under international law because Jewish settlers have freely chosen to live in Judea and Samaria; they have not been forcibly transferred to the territory by the Israeli government.
Given the opportunity, I am sure Mr Baker would draw upon several other lines of argument to support the case for the Jewish settlements. In his stead, I shall attempt to outline the main legal underpinning of the Jewish communities in Judea and Samaria.
We have to go back nearly a hundred years to discover the origin of the settlements’ legality. Firstly, there was the 1920 San Remo conference, in which Britain (following the collapse of the Ottoman empire) was instructed to establish a Jewish national home on territory covering what would become Israel, Jordan and part of the Golan Heights.
Then came the British Mandate for Palestine, a legal commission established and confirmed by the League of Nations (an early version of the UN) in 1922, which formalized the creation of two states – a Jewish homeland in “Palestine” and an Arab homeland called Transjordan (now simply Jordan).
Significantly, the Mandate not only legalized the immigration of Jews to Palestine, it encouraged close settlement of all the land, including Judea and Samaria.
Two years after the Second World War, the British handed the Mandate to the UN, which recommended (rather than enforced) a partition of the nascent Jewish homeland. Despite already having Transjordan, the Arabs rejected the offer of partition and declared war on the Palestinian Jews. This resulted in the Jordanian annexation of Judea and Samaria (and renamed the West Bank). At the insistence of the Arabs, the 1949 armistice line was “not to be construed in any sense as a political or territorial boundary.”
In 1967, Israel won control of the West Bank after a war of self-defense. UN Security Council Resolution 242 recommended Israeli withdrawal from territories in return for the right “to live in peace within secure and recognized boundaries free from threats or acts of force.” At a conference in Khartoum the Arabs refused to negotiate or make peace with Israel. In fact, they refused to recognize Israel at all.
Israel’s critics sometimes employ the Fourth Geneva Convention to argue that the settlements are illegal. But the Fourth Geneva Convention pertains only to cases of occupation of a sovereign entity. Because of the Arab refusal to reach an agreement in 1948, the West Bank never became the legal territory of any sovereign entity, not even Jordan.
A territory is only occupied if it is captured in war from an established and recognized sovereign. Jordan was never an established or recognized sovereign of the West Bank. Therefore, Israel is not an occupier and the West Bank is not occupied land.
As such, Judea and Samaria is unclaimed Mandate land and should therefore be referred to as “disputed” territory. Israel’s capture of the West Bank in 1967 merely restored the territory to its legal status under the Mandate of 1922, which has never been superseded in law, not even by the 1947 partition plan.
In short, the settlers are simply enacting the Mandate and they should be allowed to continue with this enterprise without interference or condemnation. This legal truth should form a core part of the negotiations between Israel and the Palestinians.
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