Q & A About Jewish Communities in Judea and Samaria

By Victor Rosenthal

Following the surprise announcement by US Secretary of State Mike Pompeo that “[t]he establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law,” I’ve prepared a short Q & A on the subject:

Q: Why do you say “Jewish Communities” and not “settlements,” and why not “West Bank?”
A: “Settlements” implies that they are outside of Israel. “Communities” is neutral. “West Bank” is a name invented by the Jordanians in 1950, after they ethnically cleansed the area of Jews and illegally annexed it to Jordan, an action recognized only by the UK and possibly Pakistan. “Judea and Samaria” is the traditional name used from biblical times, even by the UN before 1950.

Q: The Arabs, the EU and the UN often say that “settlements” are illegal under international law. What international law are they talking about?
A: Usually they mean the Fourth Geneva Convention, which prescribes conditions for a belligerent occupation. Article 49, paragraph 6 says “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” There are also other limitations on what an occupying power can do in the Geneva Conventions and the Hague Convention of 1907, roughly based on the idea that the territory doesn’t belong to the occupier unless or until a formal treaty establishes its status.

Q: Why did the American government agree with them?
A: The State Department had been wedded to the idea that Israel should return to her pre-1967 borders since the oil shock of the 1973 war. The requirement for “secure and recognized boundaries” in UNSC resolution 242 in 1967 receded into the background, disappearing entirely by the time of Barack Obama.

Naturally settlements were a problem. President Carter very much wanted to include Israeli withdrawal from Judea, Samaria and Gaza in the Camp David agreement that returned the Sinai to Egypt, but was unable to do so; the Camp David talks did produce a “Framework for Peace in the Middle East,” but it did not mention settlements, and was scuttled anyway by the PLO and the UN.  The arguments that settlements were inconsistent with international law were set out in an opinion written for President Carter in 1978 by State Department legal advisor Herbert J. Hansell, and never changed until Pompeo’s announcement.

Q: Why do you disagree?
A: Two reasons: first, it is a misapplication of 4th Geneva 49-6, which was intended to prevent forced transfers of population such as Germany’s deportation of Jews to occupied Poland, and not the voluntary movement of people. Second, because Israel’s legal claim on the territory is stronger than that of any other country, there is no belligerent occupation: the land is more properly considered disputed rather than occupied.

Q: What do you know? You’re not an expert in international law!
A: No, but Eugene Kontorovich is. And here is what he said about this issue:

Under international law, occupation occurs when a country takes over the sovereign territory of another country. But the West Bank was never part of Jordan, which seized it in 1949 and ethnically cleansed its entire Jewish population. Nor was it ever the site of an Arab Palestinian state.

Moreover, a country cannot occupy territory to which it has sovereign title, and Israel has the strongest claim to the land. International law holds that a new country inherits the borders of the prior geopolitical unit in that territory. Israel was preceded by the League of Nations Mandate for Palestine, whose borders included the West Bank. Hansell’s memo fails to discuss this principle for determining borders, which has been applied everywhere from Syria and Lebanon to post-Soviet Russia and Ukraine.

Even on its own terms, [Hansell’s 1978] memo’s conclusions no longer apply. Because occupation is part of the law of war, Hansell wrote, the state of occupation would end if Israel entered into a peace treaty with Jordan. In 1994 Jerusalem and Amman signed a full and unconditional peace treaty, but the State Department neglected to update the memo.

Even if there were an occupation, the notion that it creates an impermeable demographic bubble around the territory—no Jew can move in—has no basis in the history or application of the Fourth Geneva Convention. Almost every prolonged occupation since 1949—from the Allies’ 40-year administration of West Berlin to Turkey’s 2016 occupation of northern Syria—has seen population movement into the occupied territory. In none of these cases has the U.S., or the United Nations, ever claimed a violation of this Geneva Convention provision.

Q: But what about those countless UN resolutions condemning Israel? Didn’t the Security Council pass a resolution (2334) that clearly declared Israeli settlements illegal?
A: General Assembly resolutions are non-binding, and even Security Council resolutions do not have the force of international law unless they are passed under Chapter VII of the UN Charter, “Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression.” Resolution 2334 – which passed because the Obama Administration abstained in December of 2016 – was not such a resolution.

Q: But the UN, the EU, the New York Times, and many other organizations say Jewish communities are “illegal” or (as Obama liked to say) “illegitimate.” Doesn’t the international consensus count for something?
A: International law isn’t a popularity contest, and the UN is not a world government that can make or (except in special circumstances) enforce laws. The fact that many nations and individuals dislike Israel as a result of their religious beliefs, the remnants of cold-war Soviet propaganda, their relationship with oil providers, their desire to stick it to the US, or plain old Jew-hatred, does not matter.

Q: What exactly did Pompeo do?
A: Pompeo made it clear that the US did not intend to judge whether any particular community was legal (I presume he meant that one built on land that was privately owned by someone else would be illegal), but that it was no longer the case that the US would consider a Jewish community illegal simply because it was located in Judea/Samaria – or, to put it another way, that a community in Judea/Samaria would be considered illegal simply because it was composed of Jews.

Q: Does this actually matter?
A: Yes, for two reasons. One is that various groups are taking actions (boycotting products from the communities or requiring special labeling on them) on the basis of their opinion that they are illegal. The fact that the US does not agree is a powerful argument that these actions are unfairly discriminatory, and might be a basis for legislation against them in the US.

The other reason is that the idea that these communities are illegal presupposes a certain view of the conflict between Israel and the Palestinian Arabs, in which land east of the Green Line is “Arab land” rather than a disputed territory on which both sides have claims. This clearly prejudges the outcome of any negotiations, and leads to the Arabs demanding the freezing or evacuation of Jewish communities as a precondition for negotiations. One might reasonably ask how the illegal ethnic cleansing and 19-year occupation of Judea and Samaria by Jordan converted the land set aside for “close settlement” by Jews in the Palestine Mandate into “Arab land.”

***

Here is a special question for extra credit:

Q: What has Trump and his administration done for Israel so far?
A: As of today, the Trump Administration has finally fulfilled the promise of the US Congress to move the US Embassy to our capital and has asserted – as previous administrations would not – that Jerusalem is the capital of Israel. It cut funding for the Palestinian Authority while it continues to pay terrorists, and reduced the amount sent to UNRWA, the UN agency that nurtures and perpetuates the Palestinian refugee problem. It recognized Israel’s annexation of the Golan Heights. It took the US out of the Iran nuclear deal, and re-imposed sanctions on Israel’s most serious enemy. It spoke out strongly for Israel in the UN, in the voice of Ambassador Nikki Haley. And now it has separated America from those who have dishonestly accused Israel of violating international law.

All of these actions are reasonable and should have been taken by prior administrations, which often voiced their support of Israel but did little to change wrong or discriminatory policies toward her. It’s been suggested that they are all cheap, merely “symbolic,” and have little effect on the ground. But if this is so, then why didn’t previous presidents act?

November 22, 2019 | 3 Comments »

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  1. “One might reasonably ask how the illegal ethnic cleansing and 19-year occupation of Judea and Samaria by Jordan converted the land set aside for “close settlement” by Jews in the Palestine Mandate into “Arab land.””

    A question that has puzzled me for years. What is the answer?

  2. According to Eugene V. Rostow, the late legal scholar and one of the authors of UN Security Council Resolution 242 written after the 1967 war to outline peace negotiations, “the Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors,” something which Israel’s intransigent Arab neighbors have never seemed prepared to do.

    Moreover, Rostow contended, “the Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created,” and “the Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there.”

    The Six Day War of 1967, in which Israel recaptured Gaza and the West Bank, including Jerusalem, resulted in Israel being cast in another perfidious role — in addition to colonial usurper of Arab land, the Jewish state became a brutal “occupier” of Arab Palestine, lands to which the Jews presumably had no right and now occupied, in the opinion of many in the international community, illegally.

    But when did the West Bank, Gaza, and East Jerusalem become Palestinian land? The answer is: never. In fact, when Israel acquired the West Bank and Gaza and other territories in 1967 after being attacked by Egypt, Syria, and Jordan, the Jewish state gained legally recognized title to those areas. In Israel’s 1948 War of Independence, Egypt, it will be recalled, illegally annexed Gaza at the same time Jordan illegally annexed the West Bank — actions that were not recognized by most of the international community as legitimate in establishing their respective sovereignties. Israel’s recapture of those territories in 1967, noted Professor Stephen Schwebel, State Department legal advisor and later the President of the International Court of Justice in The Hague, made the Jewish state what is referred to as the High Contracting Party of those territories, both because they were acquired in a defensive, not aggressive, war, and because they were part of the original Mandate and not previously under the sovereignty of any other High Contracting Party. “Where the prior holder of territory had seized that territory unlawfully,” Schwebel wrote, referring to Jordan and Egypt, “the state which subsequently takes that territory in the lawful exercise of self-­defense has, against that prior holder, better title.”

    It is also morally repellent, for those arguing on the Palestinian side, that the West Bank, like Gaza, eventually be made judenrein, totally absent of Jews, that, as Mahmoud Abbas has loudly announced on more than one occasion, the future Palestinian state would not have one Jew living within its borders. Putting aside the fact that it is Israel that is continually derided for being racist and exclusionary (despite having one million Arab citizens), only in a world turned upside down would diplomats uphold a principle that Jews — and only Jews — not be allowed to live in certain territories, and particularly those areas to which they have irrevocable and inalterable biblical, historic, and legal claims.

    In fact, Professor Emeritus Jerold Auerbach of Wellesley College has written that, protests from the State Department and many in the West aside, “Israeli settlement throughout the West Bank is explicitly protected by international agreements dating from the World War I era, subsequently reaffirmed after World War II, and never revoked since . . . The [Mandate for Palestine] recognized ‘the historical connection of the Jewish people with Palestine’ and ‘the grounds for reconstituting their national home in that country’ . . . This was not framed as a gift to the Jewish people; rather, based on recognition of historical rights reaching back into antiquity, it was their entitlement.”

    Full article is at: https://blogs.timesofisrael.com/in-fact-the-israeli-settlements-were-never-illegal/

  3. Israel Legal Rights to Judea/Samaria

    Professor Eugene Kontorovich is the head of the international law department of the Kohelet Policy Forum and a fellow of the Jerusalem Center for Public Affair. He answers the question, “how can the legal position of Judea and Samaria [West Bank] be defined?”, in Israeli rule in the West Bank is legal under International Law .

    “The question that should be asked is: What were the borders of Israel when it was first established? What defines this is the borders at the moment of independence. Israel was created, like most countries, after a successful war where no one came to its aid. In international law, there is a clear rule regarding the establishment of new countries: the country’s borders are determined in accordance with the borders of the previous political entity in that area. So, what was here before? The British Mandate. And what were the borders of the British Mandate? From the Mediterranean Sea to the Jordan River.”
    Thus, he argued, Israel liberated its own territory in 1967. Therefor the Fourth Geneva Convention (FGC) does not apply and the settlements are legal. And if the FGC doesn’t apply then Israel has the right to expel Arabs from these territories just as the victors expelled Germans from the land they conquered.
    The international community chose not to see it that way and passed UNSC Res 242 at the end of the Six Day War in 1967. It began with a misstatement of the law, when it recited; “Emphasizing the inadmissibility of the acquisition of territory by war…” In fact, International law holds that victors, in a defensive war, can keep the land acquired.

    Nevertheless, the resolution did not demand that Israel withdraw from all territories but gave her permission to remain in the territories until the following conditions were met:
    “Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;”
    Clearly these conditions are far from being met.
    It is worth noting that the 67 War was a continuation of the 48/49 war and was made necessary by the violation of the ’49 Armistice Agreement by the Arabs. Looked at in this light, Israel totally defeated the Arabs just as the Allies totally defeated the Germans and their allies after WWII. Thus, Israel has every right to reject the return of any Arab refugees and to keep all the lands acquired to the Jordan River.