Are the territories disputed or not? (updated)

By Ted Belman

With all the talk about the freeze, announced or de facto, I decided to write an article on the genesis of the freeze thinking it began with the Mitchell Report in the early nineties. Prof Barry Rubin set me straight and advised that in 1993 Israel agreed or at least announced, a freeze. She would not build new settlements but would do infilling of existing settlements.

My research led me to this very important resource, Statements on American Policy toward Settlements by U.S. Government Officials – 1968-2009

Introduction

The policy of all Israeli governments since 1967 of settling Israeli citizens in the territories Israel occupied in the 1967 war is regarded by most governments as a violation of international law defined by the “Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.” In 2004, the International Court of Justice confirmed this in an advisory opinion. The United States supported the applicability of the Geneva Convention and the unlawful character of settlements until February 1981 when President Ronald Reagan disavowed this policy by asserting that settlements are “not illegal.”

President Reagan’s policy has been sustained, implicitly, by subsequent U.S. administrations, all of whom have declined to address the legal issue, although they have all opposed, with varying emphasis, settlements or settlement expansion. However, on April 14, 2004, President George W. Bush, in a further retreat from past policy, told Israeli Prime Minister Ariel Sharon that, “In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949…”

I presented the truth about the occupation and the settlements in an article in which I concluded that the Fourth Geneva Convention (FGC) does not apply and even if it did, there was nothing to prevent Jews from voluntarily settling in the “occupied territories”. Today Yaalon agreed

The first statement of the US government on the matter came in April 8, 1968

The Johnson Administration

“Although we have expressed our views to the Foreign Ministry and are confident there can be little doubt among GOI leaders as to our continuing opposition to any Israeli settlements in the occupied areas, we believe it would be timely and useful for the Embassy to restate in strongest terms the US position on this question.

You should refer to Prime Minister Eshkol’s Knesset statement and our awareness of internal Israeli pressures for settling civilians in occupied areas. The GOI is aware of our continuing concern that nothing be done in the occupied areas which might prejudice the search for a peace settlement. By setting up civilian or quasi-civilian outposts in the occupied areas the GOI adds serious complications to the eventual task of drawing up a peace settlement. Further, the transfer of civilians to occupied areas, whether or not in settlements which are under military control, is contrary to Article 49 of the Geneva Convention, which states “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

September 10, 1968

“Arab governments must convince Israel and the world community that they have abandoned the idea of destroying Israel. But equally, Israel must persuade its Arab neighbors and the world community that Israel has no expansionist designs on their territory.”

Already the US government took the position that the FGC applied and that the West Bank was Arab territory; both dubious propositions.

The Nixon Administration, July 1, 1969

The expropriation or confiscation of land, the construction of housing on such land, the demolition or confiscation of buildings, including those having historic or religious significance, and the application of Israeli law to occupied portions of the city are detrimental to our common interests in [Jerusalem]. The United States considers that the part of Jerusalem that came under the control of Israel in the June war, like other areas occupied by Israel, is governing the rights and obligations of an occupying Power. Among the provisions of international law which bind Israel, as they would bind any occupier, are the provisions that the occupier has no right to make changes in laws or in administration other than those which are temporarily necessitated by his security interests, and that an occupier may not confiscate or destroy private property.

The pattern of behavior authorized under the Geneva Convention and international law is clear: the occupier must maintain the occupied area as intact and unaltered as possible, without interfering with the customary life of the area, and any changes must be necessitated by the immediate needs of the occupation. I regret to say that the actions of Israel in the occupied portion of Jerusalem present a different picture, one which gives rise to understandable concern that the eventual disposition of East Jerusalem may be prejudiced, and that the private rights and activities of the population are already being affected and altered.

“My Government regrets and deplores this pattern of activity, and it has so informed the Government of Israel on numerous occasions since June 1967. We have consistently refused to recognize those measures as having anything but a provisional character and do not accept them as affecting the ultimate status of Jerusalem. . . .”

Thus the US has consistently refused to recognize Jerusalem as Israel’s capital.

This position with the exception of the Reagan recalibration and the Bush ’04 letter, mentioned above, continued until today.

What drove the US policy from the beginning was the desire to prevent anything which would “prejuudice the search for peace”. This search for peace started with the assumption that the territories were Arab lands and not disputed lands as Israel from time to time asserted. Obviously they were serving Arab interests.

This is the reason that Israel never asserts her rights to the land. She doesn’t have any in the eyes of the world. She is left to only claim concessions in the name of security. Through out most of the time since the ’67 war, Israel has accepted the American limitations on settlements and simply looked for wiggle room.

Israel has always taken the position that the FGC does not apply and that she would voluntarily be ruled by its humanitarian provisions. Were Israel to have accepted that it applied, she would in effect have accepted that the territories were lands of another party. This she wouldn’t do. Nevertheless she never asserts her rights to them.

Why not? By agreeing to construction limitations for almost thirty years, she was acknowledging that she wasn’t entitled to build.

Today the whole thing is so bizarre. Israel claims the right to build but only within the limitations that she originally accepted. The issue is whether she is entitled to build anywhere. By not exercising her right to build anywhere she has forfeited that right has she not.

Actually the problem goes back to Res 242. Why did Israel ever agree to withdraw to “secure and recognized borders” after the preamble to the resolution cited “Emphasizing the inadmissibility of the acquisition of territory by war” . I believe there is an exception to this rule, namely that if you acquire territory in a defensive war, you can keep it.

In any event the Roadmap requires the settlement to be in accordance with Res 242 at best and the Saudi Plan at worst.

So I ask you, are the territories disputed or not. I believe that Israel has relinquished its rights to Judea and Samaria granted in the Palestine Mandate. But I am also happy that Min Yaalon is trying to reclaim that right.

It is time for the government of Israel to start asserting our Mandate rights to Judea and Samaria as Min Yaalon just did. It is not too late to reject Res 242 as the basis of settlement.