Israeli Settlements Are More Than Legitimate

Summary ... Even though critics may assail the Jewish settlements in Judea and Samaria on other grounds, no one can deny that they are legal. In fact, the 1922 Mandate for Palestine encourages them.

[United States] President Obama asserts, seconded by Secretary of State Hillary Rodham Clinton, that "America does not accept the legitimacy of continued Israeli settlements" in the West Bank [sic i.e., Judea and Samaria]. Both have praised the 10-month freeze on new residential building — excluding eastern Jerusalem — that Prime Minister Benjamin Netanyahu announced late last month.

Netanyahu now calls for Palestinian Authority President Mahmoud Abbas to resume negotiations or take the blame for lack of progress when the "one-time-only" freeze expires. Abbas' precondition — adopted after Washington's pronouncements — is that all

Too bad international diplomacy doesn't have a replay button. If it did, the parties could look back at history, which would show that Israeli settlements not only are legitimate under international law but positively encouraged.

The basic relevant provision, the League of Nations' 1922 British Mandate for Palestine, Article 6, encourages "close settlement by Jews on the land, including state lands and waste lands not required for public use." Most Israeli settlements in the West Bank have been built on land that was state land under the Ottomans, British, Jordanians and, after the 1967 Six-Day War, under the Israelis, or on property that has been privately purchased.

The United States endorsed Article 6 by signing the 1924 Anglo-American Convention, a treaty stipulating acceptance of the mandate. The League of Nations is long gone, but Article 6 remains in force. The United Nations' 1945 Charter, Article 80 — sometimes known as "the Palestine article" — notes among other things that "nothing in the charter shall be construed to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments."

Eugene Rostow, U.S. Undersecretary of State for President Lyndon Johnson — who is an authority on international law and the coauthor of U.N. Security Council Resolution 242, which outlines requirements for Arab-Israeli peace — reaffirmed this principle. In 1990, he said: "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."

As for Resolution 242's call for "secure and recognized boundaries," according to Rostow in 1991 in another piece, a careful look at the wrangling over the resolution in 1967 makes it clear that it did not mandate Israeli withdrawal from all of the West Bank, Gaza Strip, Golan Heights and Sinai peninsula to the post-1948 armistice lines.

Many who allege that Jewish communities in the West Bank violate international law cite the 4th Geneva Convention, Article 49. It states that an occupying power "shall not deport or transfer parts of its own civilian population into the territory it occupies." But Julius Stone, like Rostow a leading legal theorist, wrote in his 1981 book, "Israel and Palestine: An Assault on the Law of Nations," that the effort to designate Israeli settlements as illegal was a "subversion ... of basic international law principles."

Stone, Stephen Schwebel, a former judge on the International Court of Justice, and others have distinguished between territory acquired in an "aggressive conquest" (such as Nazi Germany's seizures during World War II) and territory taken in self-defense (such as Israeli conquests in 1967).

The distinction is especially sharp when the territory acquired had been held illegally, as Jordan had held the West Bank, which it seized during the Arab states' 1948-49 war against Israel.

Further, Article 49 of the 4th Geneva Convention was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to labor or death camps. Israelis were not forcibly transferred to the West Bank, nor were Palestinian [sic] Arabs forced out of it. Two years after President Carter's State Department determined that Israeli settlements violated international law, President Reagan said flatly that they were "not illegal."

One can argue, as Reagan did and Obama does, that Israel's establishing towns in the disputed territories after 1967 obstructs diplomacy, or, as some Israeli critics do, that building Jewish communities near Palestinian Arab population centers disperses the country's Jewish majority too widely. But one cannot accurately declare the settlements illegal.

The "Mandate for Palestine" is Valid to This Day

The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the "Mandate for Palestine" of the League of Nations.

This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day. Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.

The International Court of Justice reaffirmed the meaning and validity of Article 80 in three separate cases:

  • ICJ Advisory Opinion of July 11, 1950: in the "question concerning the International States of South West Africa."
  • ICJ Advisory Opinion of June 21, 1971: "When the League of Nations was dissolved, the raison d'etre [French: "reason for being"] and original object of these obligations remained. Since their fulfillment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. ... The International Court of Justice has consistently recognized that the Mandate survived the demise of the League [of Nations]."
  • ICJ Advisory Opinion of July 9, 2004: regarding the "legal consequences of the construction of a wall in the occupied Palestinian territory."

In other words, neither the ICJ nor the UN General Assembly can arbitrarily change the status of Jewish settlement as set forth in the "Mandate for Palestine," an international accord that has never been amended.

All of western Palestine, from the Jordan River to the Mediterranean Sea, including the West Bank and Gaza, remains open to Jewish settlement under international law.

Professor Eugene Rostow concurred with the ICJ's opinion as to the "sacredness" of trusts such as the "Mandate for Palestine":

"'A trust' — as in Article 80 of the UN Charter — does not end because the trustee dies ... the Jewish right of settlement in the whole of western Palestine — the area west of the Jordan — survived the British withdrawal in 1948. ... They are parts of the mandate territory, now legally occupied by Israel with the consent of the Security Council."

The British Mandate left intact the Jewish right to settle in Judea, Samaria and the Gaza Strip. Explains Professor Rostow:

"This right is protected by Article 80 of the United Nations Charter, which provides that unless a trusteeship agreement is agreed upon (which was not done for the Palestine Mandate), nothing in the chapter shall be construed in and of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.

The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed 'sacred trusts.

Under international law, neither Jordan nor the Palestinian Arab 'people' of the West Bank and the Gaza Strip have a substantial claim to the sovereign possession of the occupied territories."

It is interesting to learn how Article 80 made its way into the UN Charter. Professor Rostow recalls:

"I am indebted to my learned friend Dr. Paul Riebenfeld, who has for many years been my mentor on the history of Zionism, for reminding me of some of the circumstances which led to the adoption of Article 80 of the Charter. Strong Jewish delegations representing differing political tendencies within Jewry attended the San Francisco Conference in 1945. Rabbi Stephen S. Wise, Peter Bergson, Eliahu Elath, Professors Ben-Zion Netanayu and A. S. Yehuda, and Harry Selden were among the Jewish representatives. Their mission was to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. Article 80 was the result of their efforts."

[ Eric Rozenman, Washington director, CAMERA | Published: February 2, 2010 ]

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