“Everyone knows” … but everyone’s wrong

By Victor Rosenthal

I don’t know how many times I’ve seen Judea and Samaria referred to as “occupied Palestinian territories,” and Jewish settlements there called “illegal under international law.” But the territories are not “Palestinian,” they are not “occupied,” Jewish communities there are not illegal, and Israel is not oppressing millions of Palestinians who also live there.

PM Netanyahu’s promise to extend Israeli sovereignty to the settlements – and not, by the way, “to annex the West Bank” as so many headlines have it – has re-ignited debate about these issues. But nothing’s changed. Here are some popular but false statements about Judea/Samaria and the Jewish communities that have been established there:

1. The “West Bank” is “Palestinian land” which Israel is occupying

Judea and Samaria, like the rest of Israel and Jordan, were part of the Ottoman Empire from the 16^th Century until the end of WWI. After the war, the League of Nations agreed to set aside this portion of the former Ottoman territory to be held in trust by Britain to become a national home for the Jewish people. Britain gave the eastern portion to Abdullah bin Hussein as a reward for his help and that of his father, Sharif Hussein of Hejaz, in the war; this would ultimately become Jordan. The land between the Jordan River and the Mediterranean, including what would become the State of Israel and Judea/Samaria and Gaza became the Mandate for Palestine.

The Arabs living in the Mandate were strongly opposed to Jewish sovereignty, and the British, from a combination of the desire to appease the Arabs to reduce their violence (which expressed itself against both Jews and the British rulers), the desire to keep “Palestine” under their control for strategic purposes, and sheer antisemitism, abandoned their responsibility to the Jewish people and tried to throttle Jewish immigration, while allowing Arabs from surrounding areas to enter.

In November 1947, the UN – which had assumed the obligations of the League of Nations – passed a resolution (UNGA 181) recommending the partition of the Mandate into a Jewish and Arab state. The Palestinian Jews were prepared to accept a truncated state (it would be the second truncation of the land originally set aside for the Jews), but the Palestinian Arabs and the Arab nations wanted all the territory to be under Arab sovereignty, and rejected the resolution.

It is important to note two things: first, the resolution, because it was passed by the General Assembly and not by the Security Council under Chapter VII of the UN Charter, was advisory, not mandatory. And second, because the recommendations were never implemented, they became moot.

The British, exhausted after WWII and tired of the attacks against their occupation forces by both Jews and Arabs, ended the Mandate in May, 1948, and went home. The Jews, who had used the Mandate period to build all the institutions required for a state – an army, an educational system, a labor federation, various state enterprises, and more – declared the State of Israel in the area assigned to them by the partition resolution. The Arabs, who could have done the same, did not do so. They redoubled their violent attacks on Jews. At the same time, the armies of five Arab nations invaded the area, intending to destroy the new state of Israel and take the land for themselves (and not to establish a state for the Palestinian Arabs!)

The war that followed ended with a cease-fire in 1949. The Arab nations would not agree to make a permanent peace or recognize the Jewish state, but they signed cease-fire agreements that demarcated the positions of their troops. These agreements explicitly stipulated that the cease-fire lines were not national borders.The areas of Judea/Samaria and Gaza were occupied by Jordan and Egypt respectively, and in 1950 Jordan formally annexed the territory it had occupied and named it the “West Bank.” This is the first time that name was used to refer to what had previously been called “Judea and Samaria.”

The Arab invasion clearly violated the UN Charter, being a “use of force against the territorial integrity or political independence” of the State of Israel, and therefore the annexation of Judea and Samaria was also illegal. Only Britain (and possibly Pakistan) recognized it. During the war and afterwards, Jordan regularly committed war crimes, violating the Geneva Conventions by ethnically cleansing the Jewish population from the territories they occupied, destroying Jewish synagogues and cemeteries, and not allowing access to Jewish and Christian holy sites during the entire 19-year occupation.

In 1967 the Arabs again planned to destroy Israel, and some Arab leaders even made genocidal statements. Although it is true that Israel fired the first shots, it is generally accepted that this was a case of legitimate military preemption of an imminent attack, and that Israel’s actions were justified self-defense. The war ended with Israel in possession of Judea and Samaria, as well as Gaza.

The argument is made that the UN charter forbids acquisition of territory by force. That is not correct. It says that

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (Art. 2, Sec. 4)

But it also says that

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. … (Art. 51)

If Israel’s actions in 1967 were legal, what is the status of Judea and Samaria? Many people say that it is a “belligerent occupation.” If so, it would still be entirely legal, just as the allied occupation of Germany after WWII was legal. But if it is an occupation, whose territory is being occupied? Not Jordan’s, whose possession of it was illegal from the start!

The last entity in legitimate possession of Judea/Samaria was the British Mandate, which no longer exists. But the only national entity that could reasonably have been considered the inheritor of the Mandate’s boundaries is the State of Israel. Given also that the Mandate was intended for the purpose of establishing a national home for the Jewish people, and considering the well-documented claim of the Jewish people to be the aboriginal inhabitants of the land, it is reasonable to see the events of 1967 as the liberation of territory that was illegally occupied, and its return to the legitimate owner, Israel.

In 1988, King Hussein of Jordan relinquished his claim to Judea and Samaria, in favor of the PLO. But since Jordan had no legitimate rights to the territory to begin with, the gesture was meaningless.

It is true that the Palestinian Arabs wish to possess Judea and Samaria (not to mention Haifa and Tel Aviv), and there are numerous members of the UN that agree with them for religious, cultural, economic, and yes – antisemitic – reasons. But wishing will not make the 1949 armistice lines a border, and wishing will not make Palestinian Arabs the legitimate heirs of the British Mandate, nor – despite their creative approach to history – the aboriginal inhabitants of the Land of Israel.

2. Settlements are illegal under international law

This is a favorite of many news media and European governments, who feel a compulsion to add “which are illegal under international law” after any mention of Israeli settlements. But even if you accept (as I do not) that Israel’s possession of Judea and Samaria constitutes belligerent occupation, the usual argument that settlements constitute a violation of the Fourth Geneva Convention provision against population transfer into an occupied territory is very weak. This protocol was established after WWII with the intent of criminalizing actions such as Germany’s deportation of its Jewish residents to occupied Poland, and not to prohibit voluntary settlement on public lands (a more complete treatment of this subject is here). It should be noted that there have been additions made (e.g., the 1977 “Additional Protocol I”) to the Geneva convention specifically aimed at Israeli policy, but Israel and other nations, including the US, have not ratified them.

3. Israel is oppressing millions of Palestinians in Judea and Samaria

When Israel and the PLO signed the Oslo Accords in 1993-5, they agreed to divide Judea and Samaria into Areas A, B and C. Area A was under Palestinian security control and civil control, Area B (much smaller) under Palestinian civil control and Israeli security control, and Area C under full Israeli control. Area C contains all Jewish settlements. More than 95% of the Palestinian population lives in areas A and B, where they are governed by the Palestinian Authority (PA). While it is true that Israel’s security forces reserve the right to enter area A to arrest wanted terrorists, Palestinians have civil and political rights granted by the Palestinian Authority to vote and hold political office. There are Palestinian courts and Palestinian police, Palestinian ministries of health, finance, labor, etc. It’s hardly fair to  blame Israel for the fact that the PA is corrupt and dictatorial, and hasn’t held an election for years.

Conclusion

PM Netanyahu’s decision to extend Israeli law to the settlements in Area C would not have any effect whatever on Palestinians living under the control of the Palestinian authority, and it does not change the status of the territories in which they are located. Israel will never abandon Judea and Samaria entirely, although it is possible that some part of them could become an autonomous Palestinian entity. But – for security, if for no other reason – Israel could never agree to a sovereign Arab state west of the Jordan, nor could it agree to the kind of massive withdrawal and dismantling of settlements that was envisioned in the Obama period. So the idea that “Netanyahu has killed the two-state solution” is silly. The two-state solution was never alive because of simple geostrategic facts.

Isn’t it nice that international law agrees.