By Ambassador (ret) Yoram Ettinger
The misperceptions, misrepresentations and ignorance surrounding the general attitude toward the legal status of Jewish settlements in the disputed area of Judea and Samaria (the West Bank), reflects the general attitude toward the unique phenomenon of the reconstruction of the Jewish national home in the Land of Israel.
“Fidelity to law is the essence of peace” opined Prof. Eugene Rostow, a former Dean of Yale University Law School, Undersecretary of State and a co-author of the November 22, 1967 UN Security Council Resolution 242. Rostow resolved that under international law: “Jews have the same right to settle in the West Bank as they have in Haifa.”
Prof. Rostow determined that according to Resolution 242, which he co-authored: “Israel is required to withdraw ‘from territories’, not ‘the’ territories, nor from ‘all’ the territories, but ‘some’ of the territories, which included the West Bank, East Jerusalem, the Gaza Strip, the Sinai Desert and the Golan Heights.” Moreover, “resolutions calling for withdrawal from ‘all’ the territories were defeated in the Security Council and the General Assembly…. Israel was not to be forced back to the ‘fragile and vulnerable’ [9-15 mile-wide] lines… but to ‘secure and recognized’ boundaries, agreed to by the parties…. In making peace with Egypt in 1979, Israel withdrew from the entire Sinai… [which amounts to] more than 90% of the territories occupied in 1967….”
Former President of the International Court of Justice, Judge Stephen M. Schwebel, stated: “[The 1967] Israeli conquest of territory was defensive rather than aggressive…[as] indicated by Egypt's prior closure of the Straits of Tiran, blockade of the Israeliport of Eilat, and the amassing of [Egyptian] troops in Sinai, coupled with its ejection of the UN Emergency Force…[and] Jordan’s initiated hostilities against Israel…. The 1948 Arab invasion of the nascent State of Israel further demonstrated that Egypt's seizure of the Gaza Strip, and Jordan's seizure and subsequent annexation of the West Bank and the old city of Jerusalem, were unlawful…. Between Israel, acting defensively in 1948 and 1967 ]according to Article 52 of the UN Charter[, 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 [British Mandate] Palestine, including the whole of Jerusalem…. It follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful….”
The legal status of Judea and Samaria is embedded in the following authoritative, binding, internationally-ratified treaties, which recognized that the area has been the cradle of Jewish history, culture, aspirations and religion:
(I) The November 2, 1917 Balfour Declaration, issued by Britain, called for “the establishment in Palestine of a national home for the Jewish people….”
(II) The April 24, 1920 resolution, adopted by the post-First World War San Remo Peace Conference of the Allied Powers Supreme Council, incorporated the Balfour Declaration, entrusting both sides of the Jordan River to the Mandate for Palestine: “the Mandatory will be responsible for putting into effect the [Balfour] declaration… in favor of the establishment in Palestine of a national home for the Jewish people.” It was one of over 20 Mandates (trusteeships) established following WW1, responsible for most boundaries in the Middle East.
(III) The Mandate for Palestine, ratified on July 24, 1922 by the Council of the League of Nations entrusted Britain to establish a Jewish state in the entire area west of the Jordan River, as demonstrated by article 6: “[to] encourage… close settlement by Jews on the land, including State lands and waste lands….” The Mandate is dedicated exclusively to Jewish national rights.
(IV) The October 24, 1945 Article 80 of the UN Charter incorporated the Mandate for Palestine into the UN Charter. Accordingly, the UN or any other entity cannot transfer Jewish rights in Palestine, including immigration and settlement, to any other party.
The November 29, 1947 UN General Assembly Partition Resolution 181 was a non-binding recommendation – as are all General Assembly resolutions - superseded by the binding Mandate for Palestine. The 1949 Armistice Agreements between Israel and its neighbors delineated the pre-1967 ceasefire – non-ratified - boundaries.
According to Article 80 of the UN Charter, and the Mandate for Palestine, the 1967 war of self-defense returned Jerusalem and Judea and Samaria to its legal owner, the Jewish state. Legally and geo-strategically the rules of “belligerent occupation” do not apply to Israel’s presence in Judea and Samaria, since the area is not “foreign territory,” and Jordan did not have a legitimate title over the area in 1967. Also, the rules of “belligerent occupation” do not apply in view of the 1994 Israel-Jordan peace treaty.
While the 1949 4th Geneva Convention prohibits the forced transfer of populations to areas previously occupied by a legitimate sovereign power, Israel has not forced Jews to settle in Judea and Samaria, and Jordan was not recognized, internationally, as its legitimate sovereign power.
Furthermore, the 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Agreement do not prohibit Jewish settlements in Judea and Samaria, stipulating that the issue will be negotiated during the permanent status negotiations, enabling each party to plan, zone and build in areas under its control. If Israeli construction prejudges negotiation, then Arab construction – which is dramatically larger – dramatically prejudges negotiation.
Finally, the term “Palestine” was a Roman attempt - following the 135 CE Jewish rebellion – to eradicate Jews and Judaism from human memory. It substituted “Israel, Judea and Samaria” with “Palaestina,” a derivative of the Philistines, an arch enemy of the Jewish people, whose origin was not in Arabia, but the Greek Aegian islands.
The campaign against legal Jewish settlements in the disputed – rather than occupied – area of Judea and Samaria is based on gross misrepresentations, fueling infidelity to law, which undermines the pursuit of peace.