An Update on the Legality of Jewish Settlement Activity

A report was presented on February 21st, 2006 by “Bitselem” which claims that Israel’s policies of settling Jewish communities in Judea, Samaria and Jerusalem, in areas that came under Israel’s control after the 1967 war, are patently “illegal and in violation of international law”.

While it would seem somewhat unnecessary to defend the right of a Jew to build a home in the Jewish quarter of Jerusalem or in the hills of Judea, it is still necessary to explicate the legality of settling Jewish communities in Jerusalem, Judea and Samaria.

Israel is not an occupier in any part of Jerusalem, which is its capital city. Israel lost the Old City of Jerusalem in the 1948 war and regained control of all of Jerusalem after repulsing an attacked by the Arab legion in Jerusalem in 1967. Israel is not an occupier in Judea-Samaria. “Occupation” can only occur when one sovereign state usurps the land of another sovereign state. However, when Israel acquired control of Judea-Samaria in 1967, in the course of fighting a defensive war, there was no state to whom this area belonged. It was in the hands of Jordan, but Jordan was simply an occupier of that area, whose presence in Judea and Samaria was recognized only by Great Britain and Pakistan and was unclaimed Mandate land, to which Israel had substantial claim. During the period of the British Mandate for Palestine, Britain was charged with “secur(ing) the establishment of the Jewish national home” and “encourag(ing) close settlement by Jews on the land”, under the terms of the San Remo Treaty, which was ratified by the League of Nations, with allowance for Jewish settlement in all of Palestine, west of the Jordan River, which includes, of course, Jerusalem, Judea and Samaria.

This was set in international law and it has never been superseded. When the United Nations replaced the League of Nations, it assumed obligations of the League. The 1947 partition resolution for Palestine, passed by the United Nations General Assembly on November 29th, 1947, did not supersede the Mandate. The General Assembly makes only recommendations, which have no standing in international law. Judea-Samaria and the eastern part of Jerusalem are often alluded to as “Arab” in nature. This is only because the Jordanians forbid Jews from living there from 1948 until 1967, after having banished all Jews from areas where they had lived for centuries. There was no significant international protest about the exclusion of Jews from traditionally Jewish areas of Jerusalem, Judea and Samaria. There are calls today for Israel to move back to the 1967 lines, as if this line represents the “real” borders of Israel. However, what came to be known as the “Green Line” was never a border. It was an armistice line, established at the end of the 1948-49 war. It was never intended to be a border; and the expectation at the time was that in short order Israel would negotiate with her Arab neighbors in order to set final borders. Those negotiations still have not taken place.

On 22 November 1967, the UN Security Council indeed adopted Resolution 242, which called for “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” as well as “termination of all claims or states of belligerency” and recognition that “every State in the area” has the “right to live in peace within secure and recognized boundaries free from threats or acts of force.” Resolution 242 never called for withdrawal from ALL territories occupied in the Six Day War ­ any withdrawal was to be contingent on negotiations that would secure a state of peace for Israel.

As far back as the late 1800s, individual Jews had begun purchasing land in Palestine, in anticipation of the establishment of a Jewish state. The Jewish National Fund began to do the same starting in 1901. (Before the end of WWI, this took place within the Ottoman Empire, it continued during the Mandate period and the British worked to establish a land registry.)

Subsequent to the 1967 war, when Israel acquired control of Judea-Samaria, this Jewish-owned land came into Israeli hands. Thus, there is some portion of Judea-Samaria that is simply owned by Jews, legally and outright. Some of these Jewish communities rest on such land ­ for example, in the area of Gush Etzion, which predates the establishment of Israel. When Israel assumed control over all of Jerusalem, Judea and Samaria in 1967, she became the custodian of that part of the land not owned outright by anyone. This is according to international law, which gives Israel the right to build on this land for purposes of security.

The Israeli Jewish communities in Judea-Samaria do not represent a “cause” of Palestinian Arab intransigence or violence, nor are they or the stumbling block to peace.. After all: The Palestinian Liberation Organization was founded in 1964, when Judea-Samaria was not under the control of Israel. What the PLO wanted to “liberate” was Israel within the 1967 lined. At that time, the PLO charter specifically stated that it had NO CLAIM on the lands controlled by Jordan and Egypt, that is, on Judea-Samaria and Gaza. It never changed that charter and the claim that land until Israel had control of it. To this day, the PLO ­ and even more so now, Hamas ­ sees any city in any part of Israel as constituting an “illegal settlement” ­ this includes Israel within the Green Line. The presence of Israel in any part of the land whatsoever is seen as illegitimate. Just view www.palestineremembered.com.