THINK-ISRAEL

ISRAEL: THE SETTLEMENTS ARE NOT ILLEGAL

by Michel Calvo, May 19, 2020

The annexation of lands in Judea and Samaria is not contrary to international law

calvo.settlements
According to international law, the Jews are the indigenous people of the lands referred to as Judea, Samaria, Palestine, Israel and the Holy Land. Jewish rights of "settlement" in the so-called "West Bank" therefore exist; it cannot seriously be contended, as the EU, France, Britain, Russia, China and other states do, that Jewish communities in the West Bank are illegal and that annexation is contrary to international law. Pictured: The Israeli settlement of Maale Adumim, at the edge of the Judean Desert. (Hazem Bader/AFP via Getty Images)


The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on September 13, 2007, by a majority of 144 states in favor, 4 votes against, and 11 abstentions, recognized that indigenous people (also known as first people, aboriginal people or native people) have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (Art. 26.1) and that the exercise of these rights shall be free from discrimination of any kind (Art. 2).

With domestic state practice, the legal status and rights of indigenous peoples has evolved and crystallized into international customary law.[2] For example, the Inter-American Commission on Human Rights declared that "there is an international customary law norm which affirms the rights of indigenous peoples to their traditional lands". The African Court on Human and Peoples' Rights affirmed that land rights of indigenous people are protected and that these rights are "general principles of law".

Among others, Belgium, Britain, France, Germany, Israel and Luxembourg voted in favor of the Declaration. Since 2007, Australia, Canada, New Zealand and the United States, who voted against, formally endorsed the Declaration in 2010. In their relations with Israel, these states cannot claim that the Declaration does not apply to Israeli Jews, since such position would amount to blatant racial discrimination.[3]

According to international law, the Jews are the indigenous people of the lands referred to as Judea, Samaria, Palestine, Israel and the Holy Land, and therefore fulfill the criteria required by international law. The Jews are the ethnic group that was the original settler of Judea and Samaria 3,500 years ago, when the land was bestowed upon the Jews by the Almighty. Leaders of this world, who chose to make abstraction of history, misleadingly refer to Judea and Samaria as the "West Bank" of the Jordan River (which includes Israel) or the "Occupied Palestinian Territories".

After the Balfour Declaration of 1917, the Treaty of Lausanne (1923), British Mandate for Palestine (1922), San Remo Resolution (1920), and Treaty of Sevres (1920) created international law, and recognized and re-established the historical indigenous rights of the Jews to their land. The signatories of these treaties and the Mandate (Britain, France, Turkey, Japan, Italy, etc.), are bound by them.

With the Mandate for Palestine,[4] accorded to Great Britain in August 1922, the League of Nations recognized "the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country". The Jewish people's right to settle in the Land of Palestine, their historic homeland and to establish their state there, is thus a legal right anchored in international law.

UNDRIP reaffirms the right of the Jewish people as the indigenous people, and "especially their rights to their lands, territories and resources."

Recent UN General Assembly Resolutions stating that the settlement of Jews in Judea Samaria is contrary to international law are no more than recommendations and have never led to amendments of existing binding treaties. UN Security Council Resolutions, stating that Jewish communities in Judea and Samaria are illegal, are not binding. Only resolutions taken under Chapter VII of the UN Charter are binding on all UN member states. For example, Security Council Resolution 2334 was adopted on December 23, 2016 by a 14–0 vote. Four permanent members of the Security Council -- China, France, Russia and the United Kingdom -- voted in favor; the US abstained. This resolution was not adopted under Chapter VII of the Charter. It is not binding. That resolution states that Israel's settlement activity constitutes a "flagrant violation" of international law. It has "no legal validity". This resolution violates the UNDRIP, the British Mandate and the other treaties.

The right of the Jewish people to "settle" in the so-called West Bank, and Israel's right to annex parts of Judea and Samaria (part of Palestine) derive from the Mandate (Levy Report[5] of July 9, 2012). Pursuant to the Mandate, the right to annex some parts of Judea and Samaria is a direct consequence of the right of the Jews to settle in all Palestine i.e. the territory of the 1936 Mandate.

Article 80 of the United Nations Charter (1945) recognized the validity of existing rights that states and peoples acquired under the various mandates, including the British Mandate for Palestine (1922), and the rights of Jews to settle in the land (Judea and Samaria) by virtue of these instruments. (Pr. E. Rostow). These rights cannot be altered by the UN.

"Except as may be agreed upon in individual trusteeship agreements...nothing in this Charter shall be construed in or 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." (Article 80,[6] paragraph 1, UN Charter)

In a series of decisions and advisory opinions on Namibia, the International Court of Justice (ICJ) ruled that a League Mandate is a binding international instrument like a treaty, which continues as a fiduciary obligation of the international community until its terms are fulfilled. In the case of Namibia, the Court upheld the Security Council's ruling that South Africa had abandoned its rights as Mandatory Power by breaching some of its fundamental duties. The Mandate survived as a trust, based on legal principles confirmed by Article 80 of the Charter.

Like the South West African Mandate, the Palestine Mandate survived the termination of the British administration as a trust under Article 80 of the UN Charter (Pr. E Rostow).

Jewish rights of "settlement" in the so-called "West Bank" therefore exist; it cannot seriously be contended, as the EU, France, Britain, Russia, China and other states do, that Jewish communities in the West Bank are illegal and that annexation is contrary to international law. This position is political, not legal. Despite UN resolutions to the contrary, the establishment of Israeli civilian settlements in the West Bank is not inconsistent with international law.[7]

Israel, the Jewish State, as a member of the international community has the right but also the duty to fulfill the Mandate that most nations disregarded, fearing terrorism and the Muslim world, and animated by 2,000 years of religious hatred and anti-Semitism.

One hundred and three years passed since the Balfour Declaration, 73 years since the 1947 UNGA Resolution 181 was rejected by the Arab states, 52 years since the 1967 Six Day War, and 27 years since the Oslo Accord. The Oslo Accords of 1993 and 1995 were signed but did not lead to peace. The Palestinian Authority (PA) does not want peace; they refused Israel's offers, made in 2000 and in 2008, for a Palestinian state and to live in peace.

The participation of the Palestinian Authority security apparatus in the murders of Jews since 1993 is proof, as well as the pay-to-slay program for prisoners implicated in terror-related offenses. PA President Mahmoud Abbas' threats that the Palestinians will provoke an "uprising" after the Bahrain Conference and after an annexation should be taken seriously. Abbas is definitively not interested in peace.

Israel has the duty to draw the logical consequences of this behavior and annex all or some of the territories in Area C, to secure the existence of its population within secure borders, and to be able to receive those of the millions Jews still living in exile who wish to settle in Israel.


NOTES

[1]  https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/61/295&Lang=E

[2]  S. Wiessner, 'The United Nations Declaration on the Rights of Indigenous Peoples' in A Constantines and N. Zaikos (eds.), The Diversity of In¬≠ternational Law (Brill, Leiden, 2009) at 343—362.

[3]  France, which voted for the Declaration, pushed for a tough EU response to any Israeli annexation move. This is no surprise since on June 2015, the Committee on the Elimination of Racial Discrimination remains concerned by the failure of France to fully recognize the existence of indigenous peoples in its overseas territorial collectivities.

[4]  https://avalon.law.yale.edu/20th_century/palmanda.asp

[5] http://elderofziyon.blogspot.com/2012/07/english-translation-of-legal-arguments.html

[6]  http://avalon.law.yale.edu/20th_century/unchart.asp#art80

[7]  https://www.state.gov/secretary-michael-r-pompeo-remarks-to-the-press/



Editor's Addendum:

The comments to the original publication are well worth reading. These are some of them.

L.J. Middleton

The Jews have every right to all the land opposite of Jordan and the Jordan River which must include the Golan Heights. Jordan is land given to Arab-Muslims and on the opposite side the land returned to the Jews, but I will contend that who gave them the land had no right to disepense it at will, that being Great Britain. Neither do I believe that Turkish Muslims or Arab-Muslims have any right to any land in Jordan, Lebanon and Syria.

Call the United Nations what you will it has no legitimate purpose in distributing land under any circumstance, nor does it have the right to determine sovereignty of any land as they have done with Arab-Muslim Palestine. So, who really decides is to the victor goes the spoils as it has always been and is the only way for land to change hands.

Sadly, Western civilization becomes absolutely supremacist when it thinks that Western and UN leaders can dispense another person's land. Since the reality is that there are no Palestinians and no land in history called Palestine one must conclude the reality that the Islamic World has concocted this absurd Palestinian nonsense and the Western powers and UN go along solely to beg for oil resources.

Israel did not take land away from the Palestinians. Egypt and Jordan had enough time to establish a Palestinian state and they did not, which then beggars the question why they support a Palestine state today? So called Palestinians are not there to create a state, they are solely there to keep Israel from knowing any peace, there is no one among the Muslims to which Israel can negotiate with and any that think that can be done are delusional.

Palestinians are there to cause nothing but grief and martyrdom for themselves by murdering Jews and the Christians. We must ask why the UN and West have done nothing to protect Christians in Lebanon and the West Bank from Muslims, but are always on their pity-pot for Arab-Muslims who call themselves Palestinians?

After having read Rabbi Michael Lerner's book on Israel/Palestine and his absurd peace and tolerance nonsense, I believe the man to be grandiose delusional. What is wrong with secular Jews that they have this attitude of martyrdom living in a world of make believe nonsense, then they push that nonsense on otherwise sensible Jews and Christians. There is no end to this conflict, and Yitzhak Rabin made things worse handing the West Bank and Gaza to the Jihadist leaders who have never given them any peace, and Rabbi Lerner would give the enemies of freedom and democracy even more for absolutely nothing.

Chris Yarney

Judea means "land of the Jews." The territory of Judea, formerly called Judah, began to be referred to as "Judea" only after the Babylonian captivity. Most of the Jews who returned from exile were from the tribe of Judah. Since the territory of Judah was nearly all that remained of the northern and southern kingdoms at the time of the exile, the returning captives were called "Judeans," and their homeland became known as Judea.

The name Judea is first introduced in the Bible in the book of Ezra as a province of the Persian Empire: "Be it known unto the king, that we went into the province of Judea, to the house of the great God, which is builded with great stones, and timber is laid in the walls, and this work goeth fast on, and prospereth in their hands" (Ezra 5:8, KJV; see also Ezra 9:9).

Ancient Israel was divided into three main regions: Galilee to the north, Samaria in the center, and Judah, later called Judea, to the south. The province of Judea, as distinguished from Galilee and Samaria, included the territories of the tribes of Judah, Benjamin, Dan, Simeon, and part of Ephraim. This area, known as the upper hill country, extended from Bethel in the north to Beth Zur in the south, and from Emmaus in the west to the Jordan River in the east.

After the period of exile in Babylon, Judea proper comprised a relatively small region immediately surrounding the city of Jerusalem, an area much reduced from the former kingdom of Judah. However, at times in the Bible, Judea is applied in a broader political sense to mean all the territory occupied by the Jewish nation (Matthew 19:1; Luke 1:5; 4:44; 7:17; 23:5; Acts 10:37; 11:1, 29; 26:20).

Under the Roman Empire, Judea was part of the province of Syria. When Jesus was born, Herod the Great was King of Judea (Luke 1:5), although he ruled a much larger area. After Herod's death and throughout Jesus' lifetime, Judea was under the rule of Roman-appointed procurators, or governors. Among these was Pontius Pilate, who governed at the time of Jesus' death. During the days of the early church, Herod Agrippa I ruled over Judea.

Jesus was born in Bethlehem of Judea (Matthew 2:1, 5, 6) as foretold by the prophet (Micah 5:2). John the Baptist began his preaching ministry in the wilderness of Judea (Matthew 3:1). Jesus frequently ministered in Judea (John 4:3; 11:7; Mark 10:1), and people from Judea came to hear the Lord's teachings and witness His miracles (Luke 5:17). Even though Jesus encountered difficulties and persecution in Judea (John 4:1—3), He commissioned His disciples to go and be witnesses in "Jerusalem, and in all Judea and Samaria, and to the ends of the earth" (Acts 1:8). Judea was among the nations represented at the outpouring of the Holy Spirit on Pentecost (Acts 2:5—11). The apostle Paul also preached in Judea (Acts 26:20), where many Christian churches were established (Acts 9:31; 1 Thessalonians 2:14). So its rather the Palestinians who are occupying Jewish land

There are no more Canaanites living. DNA will even prove that the genetics of Palestinians are not of Canaanite origin. Fossils records, Anthropological findings, all prove the existence of the Jewish people in Judea and Samaria long before the Romans. It is Palestinians who are occupying Jewish land.

Jef responding to Shoshanna

Equating the American Indian with Jews petitioning for their own sovereign state in the Land of Israel is not the same. One reason being, the American Indian represents many different tribes, who were often at war with one or the other. Rather than a united Indian state, they've settled for individual Tribal Reservations.

The Jewish presence in the Levant and the wider Middle East is historical fact. Near 50% of Israel's population is made of Mizrahi (Middle Eastern) Jews and their offspring. All of them are indigenous to the region. Regarding the wider Jewish diaspora (who've returned from other lands), they are welcomed.

lyn uzelac

If Israel would not have rights under the San Remo agreement, then neither would Lebanon, Iraq or Syria which were also formed by the same Treaty.

Cal Lefty replying to 1Cedar

Nonsense. There is no establishment clause for an Arab State in Palestine - that was reserved for the mandate for Syria, Iraq and Arabia. The concept of a co-equal share by Arabs in "Palestine" has no basis in the fact.

Furthermore the very term of Palestine means historic Israel, which also includes Jordan, and the USA has the maps to prove it. They are lodged in the Golda Meir Library at the University of Wisconsin-Milwaukee. They are owned by the American Geographic Society. I have seen them. They represent centuries of cartography, and nearly all of them include the Trans-Jordan (modern-day Jordan) as integral to the geographic dimensions of Biblical and post-biblical Israel. They are the second largest collection of historic maps of this specific geographic region assembled anywhere in the world. These maps prove, once and for all, that the modern-day state of Jordan is indeed an Arab state located in so-called "Palestine" (Israel by another name), thus the two-state solution already exists.

Palestinians will say this is false - that Palestine is the territory west of the Jordan river only, but where are the maps showing historic "Muslim Palestine" through the centuries? There simply aren't any, because Muslims never recognized the name "Palestine" throughout their entire history.

"Palestine" is the European-Christian name given to the Land of the Jewish people by Europeans. Islam and Islamic people have nothing to do with this specific geographic entity other than to acknowledge its Jewish ownership through the context of the Muslims' own Koranic declaration. In Islamic theology, of all the world's lands, Israel's Jewish ownership is the one specific exception to an eventual global Islamic patrimony. The historical ownership deed to this specific land has been witnessed by three world religions and declared by tens of billions of people throughout history. Israel has already ceded the Trans-Jordan as the Arabic state, and thus addressed "the rights of Arabs settled in the Mandate territory".



Michel Calvo was born in Tunis, Tunisia. An expert in international law, he was a member of the International Court of Arbitration representing Israel. He is the author of The Middle East and World War III: Why No Peace? with a preface by Col. Richard Kemp, CBE.

This article was published by the Gatestone Institute and is archived at
https://www.gatestoneinstitute.org/16032/israel-settlements-not-illegal
It is archived at Think-Israel at
http://www.think-israel.org/calvo.settlementsarelegal.html.

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