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well as for Kol Yisrael radio, was interviewed here last week. One of
the subjects discussed was the legality or lack thereof of the Jewish
settlements in Judea, Samaria and Gaza.
The Arab claim concerning the illegality of the Jewish settlements in
Judea, Samaria and Gaza could not have found a more eloquent spokesman
than Moshe Negbi. He very fervently – stressing most firmly that he
does not allow political considerations to influence his opinions, but
rather speaks as a “jurist and nothing else” – tried to convince us
that the settlements represent a violation of the laws of war and that
they therefore are an international crime. He also claimed that all,
or almost all, experts in international law universally accept the
view that the settlements are illegal.
While I have no pretensions to even a fraction of the knowledge and
understanding of law that Negbi possesses, I do believe that I have
acquired certain reading comprehension skills. I have read the
relevant material in the public international legal literature and my
conclusions concerning the position of international law on the
legality of the settlements – based on the opinions of world-class
experts in international law – are diametrically opposed to those of
Negbi.
1920 – The Historic Bond Becomes a Legal Right
In 1920, after World War I had ended, the Allied Supreme Council that
assembled at San Remo, Italy, decided, in accordance with the Balfour
Declaration of November 2, 1917, to assign the mandate for the
establishment of a national home for the Jewish people in Palestine to
Great Britain. This turned the right of the Jewish people over Eretz
Israel into a right recognized by international law.
The historic bond that the Jewish people had with Eretz Israel
consequently became a right legally recognized by the 52 members of
the League of Nations. The United States joined the League at a later
time, not having been a member of the international organization at
the time. — and held a separate forum with identical final documents
in 1925, establishing a homeland for the Jews in Palestine. ~Shosh¨
The significance of the recognition of the right of the Jewish people
to Eretz Israel by international law was in its acknowledgment of the
justice of the Jewish and Zionist claim to the land that had been
stolen from the Jewish people by foreign occupiers and their right to
have it restored to them. The recognition also voided the legal
validity of the occupation of Eretz Israel by foreigners as well as
the expulsion of Jews from it.
The Mandate over Palestine, which anchors the rights of the Jewish
people to their country in international law, states that “No
Palestine territory shall be ceded or leased to, or in any way placed
under the control of, the Government of any foreign Power,” and that
“The Administration of Palestine… shall facilitate Jewish
immigration under suitable conditions and shall encourage… close
settlement by Jews on the land, including State lands and waste lands
not required for public purposes.
The British government did not fulfill the aim of the Mandate where
immigration and settlement were concerned (the decrees of the White
Paper) in gross violation of its obligations under the Mandate.
Additionally, it abused its role as the guardian of Eretz Israel for
the purpose of the establishment of a national home for the Jewish
people. In September 1922, just months after the confirmation in
writing of the Mandate, Britain decided to separate the eastern bank
of the Jordan from the western part and transfer control of the
eastern side to the Arabs (Transjordan).
Subsequently, only western Eretz Israel – from the Mediterranean to
the Jordan – the “West Bank” – remained, in the eyes of international
law, as the area designated for the establishment of a national home
for the Jewish people. It was this separation on which the peace
treaty with Jordan was based, whereby Jordan kept the land on the
eastern bank of the Jordan River and became the ‘palestinian
homeland’. This separation specifically reserved the West Bank for
Eretz Yisrael even as it gave the Eastern bank, which should ALSO have
been part of Israel, away.
This legal status of this area – in the view of international law –
has not changed to this day. Even the United Nations partition plan of
1947 was rejected by the Arab world, and on May 15, 1948, the day the
British Mandate over Palestine ended, the Arabs attacked the newly
born state with the express goal of annihilating it. It should be
stressed that the partition plan was in fact no more than a
recommendation, and had no power to bind the sides, and this too was,
as stated, rejected by the entire Arab world and therefore became null
and void in the eyes of international law. Judea and Samaria are part
of the Jewish homeland
Did the Jewish People Lose its Rights to Those Areas of Eretz Israel
Lost in the War of Independence, 1948?
The answer to this question is no. Egypt did not establish sovereignty
over the Gaza Strip and the sovereignty of Jordan over Judea and
Samaria was recognized by only two countries, Britain and Pakistan. In
fact, Jordan never held legal sovereignty over the areas of Judea and
Samaria, and has relinquished any claims to sovereignty there. The
status and rights of Jordan over the parts of Eretz Israel it occupied
for 19 years were at most the rights of an occupying force.
In consideration of the fact that Israel succeeded in restoring this
territory in a war of defense that had been forced upon it, while
Egypt and Jordan took the same territories by means of illegal
aggression in the War of Independence, Israel’s rights over the areas
of Judea and Samaria take priority over the rights of the hostile Arab
countries. These areas, therefore – from the point of view of
international law – never ceased to be part of the western Eretz
Israel designated in its entirety for the establishment of a national
home for the Jewish people, including of course, the right of Jews to
settle in their land as established in the British Mandate.
Did the End of the British Mandate over Eretz Israel Generate Any
Change in the Rights of the Jewish People Over its Land From the Point
of View of International Law?
The answer to this question is also no. Article 80 of the UN charter
was written to defend the validity of rights determined in the Mandate
even after the mandate system no longer exited. After the areas of
western Eretz Israel were liberated from the Arab occupier in the Six
Day War (1967), returning them to the control of the Jewish people,
all the obligations according to international law remained as they
were. The purpose of these areas, after all, was that they serve as
the basis for the establishment of a national home for the Jewish
people.
It is in fact the duty of the Jewish state, which replaced the British
Mandate, to fulfill these obligations. Israel’s status in these
territories, therefore, is in no way that of an occupying force,
because in accordance with the outlook that has guided the State of
Israel since its establishment, Israel does not annex territory that
before 1948 was part of mandatory Eretz Israel. (i.e. Israel does not
annex it’s own land)
Israel does not consider itself to have the status of an occupying
force because it never considered the Arab countries that invaded
Eretz Israel in May 1948 as having any sovereign rights over the
territory of Eretz Israel they occupied. They were merely military
occupiers. After this territory was restored to the control of the
State of Israel, it became the obligation of the Jewish state – both
from a Jewish Zionist standpoint as well as from the point of view of
international law – to realize the rights of the Jewish people over
the Western part of Eretz Israel in its entirety, including the right
of settlement.
UN Resolution 242 Does Not Require a Return to the 1967 Borders The
media often refers to settlements and the presence of the IDF in the
West Bank and Gaza as “illegal under international law.” This is the
Palestinian viewpoint, which is derived from their citation of UN
Resolution 242, which states “the withdrawal of Israel’s forces from
territories occupied in the recent conflict — 1967¨.” The authors of
this resolution have stated publicly and repeatedly that they omitted
the words “all territories occupied” and FURTHER, they added
phraseology which called for “an accepted settlement” between the
parties because “all States have the right to live within secure and
recognized boundaries.”
It is evident both from the paper reprinted today and UN Resolution
242 that Israel does INDEED have every right to sovereignty and
settlement in the West Bank and/or Gaza.
The Geneva Convention Does Not Void the Mandate
This position, which views the right of Jewish settlement in Judea,
Samaria and Gaza as anchored in the rules of international law, is
supported by a once-highly placed figure in the American
administration, one of the drafters of the celebrated UN Resolution
242, a Deputy Secretary of State and professor of international law,
Eugene Rostow. He wrote,
The primary objective of the Palestine Mandate was different… from
the mandate over Arab countries…. The Allies established the
Palestine Mandate in order to support the national liberation of ‘the
Jewish people’ because of ‘their historic connection to the land.’ The
mandate encouraged the Jews to found a national home in Palestine, and
gave them the right to establish a “National Home” in Palestine and
granted them the right to make close settlements without prejudice to
‘the civil rights and religious rights of the existing non-Jewish
communities in Palestine.’ The term ‘civil rights’ in this sentence is
carefully distinguished from ‘political rights.’
The right of the Jewish people to settle in Palestine has never been
terminated for the West Bank… The only way which the mandate
right of settlement in the West Bank can be brought to an end is
through the annexation of the area by an existing state or by the
creation of a new one.” Rostow stresses that the right that arose by
virtue of the Mandate is perpetual, as long as the territory of the
Mandate is not turned into an independent state or does not become
part of an existing one.
Therefore, from the point of view of international law, the recognized
right of the Jewish people over all areas of western Eretz Israel is
completely valid, including the right to settle throughout the
territory.
Rostow also rejects the claim that the act of settlement violates
article (49)6 of the Fourth Geneva Convention of 1949, which forbids
an occupying power from deporting or transferring parts of its own
civilian population into the territory it occupies. Professor Rostow
writes that the settlers of Judea, Samaria and Gaza were not
transferred to live there as a result of deportation or “transfer.”
“The Jewish settlers in the West Bank are most emphatically
volunteers,” he writes. “They have not been “deported” or
“transferred” to the area by the Government of Israel and their
movement involves none of the atrocious purposes or harmful effects on
the existing population that is the goal of the Geneva Convention to
prevent… deportations for the purpose of extermination, slave labor,
etc.¨.” (This article was written to ENSURE that another Holocaust is
prevented. ~Shosh)
Furthermore, writes Professor Rostow, the Geneva Convention applies
only to acts by one signatory country “carried out in the territory of
another. The West Bank is not the territory of signatory power, but an
unallocated part of the British Mandate. Even if the Geneva Convention
could be interpreted as to prohibit acts of settlement during the
period of occupation, it can in no way bring to an end the rights
granted by the Mandate. It is hard, therefore, to see how even the
most narrow and literal-minded reading of the Convention could make it
apply to the process of Jewish settlement in the territory of the
British Mandate west of the Jordan River.”
And he continues, “But how can the Convention be deemed to apply to
Jews who do have a right to settle in the territories under
international law? – a legal right assured by treaty and specifically
protected by Article 80 of the United Nations Charter, generally known
as the “Palestine Article.” The Jewish right of settlement in the area
is equivalent in every way to the right of the existing population to
live there.”
Regarding the Geneva Convention, it should be pointed out that the
willingness of the Government of Israel to recognize the validity of
the Geneva Convention over the areas of Judea, Samaria and Gaza was
merely and exclusively for humanitarian reasons, and not for any other
purpose. Consequently, Moshe Negbi’s claim that “If Israel can annex
East Jerusalem, then by the same token, Egypt can declare tomorrow
that New York is part of Egypt,” is completely baseless. New York is
part of a sovereign state – the United States of America – meaning
that Egypt cannot declare sovereignty over it. Judea, Samaria and
Gaza, on the other hand, are not part of any country and furthermore,
from the point of view of international law, belong to the Jewish
people.
Accordingly, the State of Israel – the state of the Jewish people – is
entitled to declare sovereignty over the areas which according to
international law belong to it. It certainly has the right to allow
Jews to settle there, pursuant to international law.
A long list of supporters Moshe Negbi’s attempts to undermine the
rights of his own people to their homeland notwithstanding, Douglas
Feith, who served as Deputy Assistant Secretary of Defense and Middle
East specialist on the White House National Security Council staff
during the Reagan administration, holds a different view. He writes
“ÝAlthough¨ the Mandate distinguished between Eastern and Western
Palestine… it did not distinguish between the region of Judea and
Samaria and the rest of Western Palestine. No event and no armistice
or other international agreement has terminated the Mandate-recognized
rights of the Jewish people, including settlement rights, in those
portions of the Mandate territory that have yet to come under the
sovereignty of any state. Those rights did not expire upon the demise
of the League of Nations, the creation of the United Nations, or the
UN General Assembly’s adoption of the 1947 UN Special Committee on
Palestine plan for Western Palestine.”
Feith explains that if the Jews do not have recognized legal rights to
their claim to Judea and Samaria as part of their state, then they
lack such rights in any part of Eretz Israel because all the rights
derive from “the historical connection of the Jewish people with
Palestine recognized in the Mandate.”
ÝThis is why so many peace supporters in Israel draw the line at
giving away the Temple Mount. The Mount is our strongest historical
connection to the land of Israel and if we give that away, we give
away the BASIS by which ANY LAND in the region is allocated as a
Jewish State. To give away the Mount gives away the right to a Jewish
State at all and paves the way for a legal overturning of Israel’s
right to existence.Ӭ
He adds that the claim that the Jews do not have a legal claim to
Judea and Samaria could be catastrophic concerning other claims the
Jews have to sovereignty over Israel within its pre-1967 borders.
I have cited here only two experts in international law who hold this
view, but the list of jurists and members of the administration who
support the legality of Jewish settlement in Eretz Israel is very long
and includes such names as Julius Stone, Professor Yehuda Bloom and
others. It could at least be expected that Moshe Negbi, who
undoubtedly is aware of these views, demonstrate some measure of
integrity and acknowledge the existence of the legal positions with
which he is not comfortable and which run counter his own political
views.
In any case, before accusing Israeli governments of being instrumental
in the commission of international crimes, he might do well to
consider this question: Would not the deportation of Jews from their
place of settlement – as the Arabs demand as part of their call for
the dismantling of the “illegal” settlements – in fact be itself an
international crime – as deportation is termed in international law?
Would Mr. Negbi feel comfortable with the fact that the only place in
the world (perhaps outside of Saudi Arabia) where the policy of
“Judenrein” is implemented de jure and de facto is in the only
homeland Jewish people have?
Not only is the right of settlement in the land of Israel an integral
part of the Zionist vision – it is strongly anchored in the precepts
of international law.
