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The question brings us to an examination of the Fourth Geneva Convention and the Red Cross, and reveals an uphill battle against law and reason for those who want the settlements gone.
Despite all the legally binding treaties, covenants, and agreements that established the Palestine Mandate in 1922 and empowered its British administration to ensure that this area would become "the Jewish National Home," it's strange that Jewish communities in Judea and Samaria (the West Bank) are condemned as "illegitimate," "illegal," and "violations of international law." How did this happen?
Bashing "the settlements" is commonly used to delegitimize Israel, negate the right of Jews to live in their homeland, and promote a second Arab Palestinian state. But are these charges valid? In order to answer this question one must refer to the law, the Fourth Geneva Convention (GC IV), specifically Article 49.
Does GC IV apply to Israel? Do settlements violate GC IV? Is Israel occupying another country? Did Israel compel a transfer of populations, considered illegal under GC IV? Who has sovereignty? These questions have occupied generations of legal experts and politicians, filled library shelves, and generated much confusion.
Simplified, here are some facts.
According to the governing Mandatory authority, which was in force until 1948, Jews were not only permitted to build in the entire area designated as the "Jewish national home," they were entitled to do so by the Mandate itself. Zionism, the political expression of Jewish self-determination and sovereignty in the Land of Israel, was (except for Arabs) generally undisputed.
Sovereignty was implicit when the state of Israel was declared, and then, having survived a genocidal invasion by five Arab countries in 1948, Israel was accepted into the United Nations, albeit without recognized borders. Following an armistice, Egypt occupied the Gaza Strip and Jordan occupied Judea, Samaria, and east Jerusalem; their occupations were not recognized as legitimate (except by the UK and Pakistan).
In 1967, when Egypt, Jordan, and Syria initiated hostilities, Israel struck back in self-defense, taking control of Judea, Samaria, eastern Jerusalem, the Golan Heights and the Gaza Strip. A few months later the United Nations Security Council (UNSC) passed Resolution 242, which affirmed Israel's right to retain at least some of the territories it had acquired in any anticipated "land for peace" agreement, and its right to "secure and recognized boundaries." The resolution was deliberately not specific and avoided the question of sovereignty, a gap that remains the source of confusion and contention.
To whom does this territory legally belong? Jordan claimed it as its "West Bank" until 1988; Israel was willing to exchange it for peace, but the Arabs refused. In 1971, the International Committee of the Red Cross (ICRC), the official "guardians" of GC IV, arbitrarily declared that Israel's presence in "occupied territories" violated GC IV and was therefore illegal.
Since the ICRC, a private Swiss organization, does not allow access to its protocols, there is no way of knowing who made these decisions and how they arrived at their conclusions, yet, they are widely accepted as law. Many question whether GC IV can be applied to these disputed areas and if prohibiting Israelis from living there is consistent with existing law. As Palestinians move towards UN recognition of statehood, questions of sovereignty become crucial.
The core legal issue, according to Michael Newton professor of law at Vanderbilt University and a leading expert in the field is which nation-state had full sovereignty in this territory when Israel took military and political control.
Logically, since Jordan renounced its claim to Judea and Samaria in 1988, and signed a peace treaty with Israel in 1994, recognizing its current border, the only other possible valid legal claim, defined in the Mandate, is that of Israel; Palestinians have no claim because the area was never a Palestinian state.
According to Professor Newton, "Occupation itself does not change sovereignty, but temporarily displaces it until full sovereignty is either restored or reasserted." By extension, Israel's presence in Judea and Samaria is legal and legitimate because it did not acquire territory belonging to another state or legal entity.
Sooner or later, Israel will have to decide what part of Judea and Samaria belongs to the Jewish people and what to do about that.
Finally, since Israel did not "forcibly transfer" populations, prohibited in GC IV, condemning Israel lacked solid foundations. Therefore, in 2002, the Arab states at the Rome Statutes of the International Criminal Court added a new element to the law governing war crimes, making it a crime for an "occupying power" (i.e., Israel) to transfer its citizens into "occupied territory" not only forcibly, but indirectly as well that is, by providing any assistance such as mortgages and infrastructure.
This Rome treaty provision was specifically designed to declare Jews who built homes over the Armistice Lines of 1949 and Israel guilty of war crimes. An extension of GC IV, it leads back to the ICRC. Without the ability to examine their archives, however, it's a dead end. What is the ICRC hiding, and why?
Whether Israeli settlements are "unacceptable" and "unhelpful" is debatable. ICRC and kangaroo court rulings against Israel, like those of the International Court of Justice, however, have no basis in proper judicial procedures. They serve only to demonize and delegitimize Israel, and abrogate the meaning of just law.
Editor's Note: Some of the readers' comments contribute information on why the settlements are legal. To those who use the either-or: either you create a Palestinian State OR you absorb the Arabs in the Territories as citizens of Israel, may I point out there's a third alternative: keep the Land and give up the Arabs. Locate them in some area in the Arab Holdings. See, for example, essays in the September-October 2010 issue, beginning with this one.
1. Adina Kutnicki, Israel
'The Legal Foundation and Border of Israel Under International Law', by eminent legal scholar, Howard Grief, lays out Israel's LEGAL case. Anyone who desires the truth should read this book. Simple as that. [Editor's Note: Read about it here. Read articles by Howard Grief by googling for "Howard Grief" in the Google box at the top of the Think-Israel home page; e.g., this is one and this is another.]
2. James May
I don't really see 'law' as being the true basis of anything here but in fact, three groups that had successively smaller guns being the arbiters of fate.
In what world did Great Britain ever have moral or ethical and therefore legal jurisdiction over former Ottoman territory since war itself is an abrogation of law? What appeared as legal and orderly from London looked an awful lot like military occupation and the dregs of empire to those in Mandatory Palestine. What legal basis did British maneuvering and occupation in Egypt ever really have?
When Great Britain threw up its hands and left its so-called 'mandate', muslim and Jew were left to fight it out in yet another arena in which law was not invoked and therefore was of no use and the Palestinian Jews won.
Resorting to calls for the rule of law has been an action of convenience for all sides and the final arbiter of all in such matters as nationhood stood supreme, and that is the reality that might makes right.
It is that arbiter that is the basis of the bewildered looks on native-American faces from Maine to Hawaii and the basis of American federal 'law'.
I don't have a problem with this type of arbitration since it is the basis of reality itself and one ignores it at ones own risk and in any event, bullets and bombs as an expression of cultural will do not ask my permission or advice. What scraps are left to the loser is really just the high water mark of violence and when it recedes it is not a form of justice but an exhaustion of what is possible for violence alone to define these are often called 'borders'.
Law at its heart is an elusive concept, usually being stingily reserved for those a culture defines as not having the status of an 'other'. One can find law and sometimes even justice within a culture but when applied to other cultures, it is probably fair to say that the map of Europe itself is the result of naked violence which is why there had been a large polity called Poland, a Duchy of Warsaw and at times no Poland, Gdansk and Danzig you say tomato and I say tomahto and I have a gun which trumps etiquette.
In the case of modern day Europe there is an unprecedented amount of cooperation between nations exhausted by centuries of war but it is still safe to say that no borders will really change there as the result of law and without the use of force. The map of the middle east was drawn by Europeans at the point of a sword and without regard to ethnicity. Even those borders are jealously guarded by those countries as the concept of a border is a sacred thing in today's world, for selfish and mystic nationalistic reasons as well as concepts by outside nations involving the balance of power.
Israel's status in terms of exerting or not exerting sovereignty is not under threat because of law, but because of the modern disdain the West has for the rule of reality which is ironically, the very basis for the status of the nations which challenge Israel. A base desire to replace war with law globally is a noble venture but a monumentally hypocritical one that has been a failure since, when the International Criminal Court extradites criminals, it does so only in those places where there is a vacuum of raw power and Libya cannot do to the U.S. what we do to Libya.
Along those same lines, the middle eastern countries that hate Zionism are themselves mirror images of the idea of a religious state and so it is not religion as the basis of a polity that has muslims so up in arms but the notion that Israel is not muslim that is the issue. Fair play is nowhere to be found here so we should not kid ourselves by dressing up a goat as a woman and taking it out on a date.
Jack in Silver Spring
To James May I agree with most of what you have to say in the second part of your comments, but I kind of disagree with the first part. You say: "In what world did Great Britain ever have moral or ethical and therefore legal jurisdiction over former Ottoman territory ... ?" Along those lines let me ask you, by what right did the Ottoman's occupy the territory of the Eastern Roman Empire (the Byzantine Empire), and by what right did the Roman Empire occupy the Seleucid Greek Empire which had occupied the Asian portions of the Persian Empire? Also, by what right do the Franks occupy the former Roman Empire area called Gaul, and by what right do the Angles and Saxons occupy Britain? And of course, by what right do the post-Columbian native Americans occupy America? And so on. There is no right (unfortunately) to this or that. It is what you can defend that gives you the right to be where you are. As long as the Jews of Israel can defend themselves, they have every right to be there.
The problem with going back to Great Britain and the Ottomans is that while interesting enough in a "how did we get here" sense, it leads to no resolution. One might as well argue the relative merits of legality between Moses and Pharaoh.
Fact is, the Ottomans picked the wrong side in WWI and got chopped up accordingly. The Brits who had made common cause with Arabs (a la Lawrence of Arabia) were into the chopping and handing-out biz because they picked the right side in WWI. Saudi Arabia, Yemen, Jordan....all were pieces of the Ottoman empire disposed of by the victors and started out with the same legitimacy as Israel.
As to subsequent disputes, it would seem that the nations involved would be the parties at interest if Israel and Jordan settled their border along a certain line, then that's where the border is.
If the League of Nations had no authority to establish a Jewish state, what right did it have to establish all the Arab states? And what right does the UN (successor to the League) have to do anything?
Spot on Ron. Not only that of course. The 51 members of the League UNANIMOUSLY voted for it as well.
1920 San Remo International Conference clauses awarded the sovereignty over the whole Palestinian Mandate (From Mediteranean sea to Hejaz railway=125,000 square kilometers) to the sole Jewish people. These clauses are still valid,binding and embedded into the international laws. Leftists may claim whatever they want but nobody can withdraw these rights to the Jewish People.
Adina Kutnicki is right about the Arabs who are miscalled "Palestinians." The Roman Emperor Hadrian in 135 A.D.. after defeating the last of the Jewish rebellions under Bar Kochba, renamed Judea "Palestina" and outlawed Judaism. From that time, "Palestine" was synonymous with "Land of the Jews" or "the Holy Land" (since Jesus was a Jew), and "Palestinian" was synonymous with "Jew." That is why Great Britain was awarded the "Palestine Mandate" after World War I to be the homeland of the Jews.
It was in Cairo, in 1964, that Gamal Nasser, ruler of Egypt, and the Soviet Union, invented the "Palestine Liberation Organization" with all the phony history and propaganda to go with it. Arabs are not "Palestinians."
Adina Kutnicki, Israel
PAthena,you do know your history, something which is in short supply world over.
As a matter of record, my dearest friend in Israel,Tsafrir Ronen,( may he rest in peace)had completed and sold his rights to his 3 part historical documentary, Hadrian's Curse to Channel 1 in Israel.This was done just before his sudden death in Dec 2008.
There are a few details holding up production, but once shown it will seal the PA's fate.The invention of their 'peoplehood' will be laid bare-historically speaking. [Editor's Note: you can read Ronen's article on the "Palestinians" here.]
It took a former Sayeret Matkal commando(General Army Staff)who participated in the raid on Entebbe;having been also a former Communications Director for Rabin,quitting when he signed the Oslo Peace/Death accords, as well as a former CEO of Israel History Channel to set the historical record straight.
Why haven't Israel's leaders done the same?
"B'nai Israel" ("children of Israel," aka "The Jewish People") is a Biblical reference. A group of people called "Plishtim" (the word means invaders)who originated in what today are Greek islands conquered parts of Egypt and Israel. They were eliminated around the time of King David, 3,000 years ago. The term "Palestinian people" according to Rashid Khalidi and others is a modern term that developed in response to Zionism, especially after the wars of 1948 and 1967. Supported by the UN and others, the notion of a Palestinian people, like that of Libyans, Syrians, Jordanians, etc is revealed as myth.
Since the Roman times Palestine is a name of a region not of people. During the Mandate the term 'Palestinian' was referring to both Jews and Arabs living in Palestine. As a matter of fact When Arabs were mentioned they were mentioned as 'Palestinian Arabs'. Browsing articles from the mandate time you can clearly see that Arabs were trying to distance themselves from any Palestinian connotations(i.e. They did not like to be called Palestinians and never saw themselves as a distinct people from the Arab nations, although there was never such nation in this highly fragmented tribal society).
As a matter of fact it's akin to today's symptoms of the use of the term 'Israeli' although it refers to a citizen of Israel be it an Arab or Jew. (Many) Israeli Arab are showing disdain at being called Israelis and adopt the name that purged itself of Jewish ownership 'Palestinian'.
And the misinformed are getting lost...
Just as Palestinians are an invention so is the Mohammedan ARAB claim to the Holy Land. They are ARAB invaders after all so to accept that they have the 'RIGHT' to the Holy Land is to accept a 'Right of Conquest' that said the Jews conquered the land then so do they not have a 'Right of Conquest ' too. To deny it exposes your illogical antisemitism . Now I can understand that with Mohammedans Islam and logic are polar opposites but what is the left wing monbats excuse?
In 1920, Great Britain was given the responsibility by the League of Nations to oversee the Mandate over the geographical territory known as Palestine with the express intention of reconstituting within its territory a Jewish National Home.
The territory in question stretched from the Mediterranean Sea to the eastern boundary of Mandatory Palestine, which was a border that would separate it from what was to become the future state of Iraq.
The League of Nations created a number of articles, which were in line with the original intent of the Balfour Declaration of November 29th, 1917. At the last minute, however, a new article was introduced by the British Colonial Office: article number 25.
At first the sudden addition of this article was not a cause for alarm but gradually it became apparent that its inclusion directly enabled Great Britain in 1921 to tear away all the territory of geographical Palestine, east of the River Jordan, and give it to the Arab Hashemite family; the territory to become Trans-Jordan and led by the emir Abdullah.
Britain presented this gift to Abdullah, the son of the Sherif of Mecca, as a consolation prize for its awarding of the Hedjaz territory and Arabia, which included Mecca, to the rival Saud family: That vast territory is now Saudi Arabia.
British officials also claimed that the gift of Mandatory Palestine east of the Jordan River was in gratitude to the Hashemites for their contribution in helping defeat the Turks. However, even T.S. Lawrence later described in derisory terms the Hashemite role as "a side show of a side show."
This was the first partition of Palestine and created a brand new entity 87 years ago covering some 35,000 square miles or nearly four-fifths of the geographical territory of Palestine. Immediately Jewish residence in the territory was forbidden and it became in effect judenrein the German term for the ethnic cleansing of Jews from a territory.
This betrayal by none other than Winston Churchill, the Colonial Secretary at the time, was a devastating blow to the Jewish and Zionist leadership, which now saw the promised Jewish homeland reduced to the remaining narrow territory between the Mediterranean Sea and the River Jordan an area barely 50 miles at its widest.
Shortly after, in 1923, the British and French colonial powers also divided up the northern part of the Palestine Mandate. Britain stripped away the Golan Heights (ancient biblical Bashan) and gave it to French occupied Syria.
The Balfour Declaration issued by Lord Balfour, British Foreign Secretary, never envisaged that the Jordan River would be the eastern boundary of the reconstituted Jewish homeland. Indeed, the Zionist leadership had put forward in February 1919 its first submission that the eastern boundary would run well east of the Hedjaz railway. The incorporation of the railway would be an economically essential requirement for the Jewish community living east of the River Jordan as well as providing it with vital security.
The squabbling by the French and British colonial powers over the final frontiers of the Palestine Mandate had earlier led the London Times to urge Paris to accept sensible and rational frontiers in both the north and east of Jewish Palestine. As early as September 19th, 1919 it had thundered in an editorial:
"The Jordan will not do as the eastern frontier of Palestine ... Palestine must have a good military frontier east of Jordan ... Our duty as Mandatory is to make Jewish Palestine not a struggling state but one that is capable of vigorous and independent life ... "
But Jewish aspirations inevitably were dashed as a new British Foreign Secretary, Lord Curzon, took the place of Lord Balfour. This new British official within weeks of succeeding Balfour made it clear that Britain was intent upon separating Transjordan from Palestine: the first two-state solution.
The succeeding history of the remaining one fifth of the original territory promised to the Jewish people by Lord Balfour and the British government was one of continuing British betrayal as each successive Mandatory administration displayed pro-Arab and anti-Jewish policies.
During its administration up until 1947, Britain severely restricted Jewish immigration and purchases of land while turning a blind eye to massive illegal Arab immigration into the territory from neighboring Arab states.
Britain's sorry record of appeasement of the Arabs, at the expense of Jewish destiny in the remaining territory, culminated in the infamous 1939 White Paper, which limited Jewish immigration to just 75,000 souls for the next five years. This onerous and draconian policy, coming as it did on the eve of the outbreak of World War 2, was a death blow to millions of Jews attempting to flee extermination by Nazi Germany.
Britain's mismanagement of the Mandate finally led to the United Nation's Partition Plan of 1947. The Jewish Agency reluctantly accepted this additional dismemberment of what was left in Mandatory Palestine of the promised Jewish National Home.
They did this in order to provide a refuge for the surviving Jewish remnants of the Holocaust and for the growing numbers of Jewish refugees being driven out of their homes throughout the Arab world. In contrast, the Arab regimes rejected the Partition Plan. Then, as now, they worked against the existence of an independent Jewish state.
Israel was officially re-born as a sovereign nation in 1948 and its 600,000 Jews fought to survive the massive Arab onslaught, which was intended to wipe out the Jewish state.
In 1948, Trans-Jordan, renamed the Kingdom of Jordan since 1946, had joined the other Arab nations in invading the Jewish state, illegally annexing the Biblical and ancestral Jewish heartland of Judea and Samaria and renaming it the West Bank. Only Britain and Pakistan recognized the annexation.
The war ended in tortuous armistice lines resulting in an Israeli border a mere nine miles wide at the most densely populated area, which stretched from the Mediterranean Sea to the Jordanian occupied West Bank. Israel's late Foreign Minister, Abba Eban, described these dangerously vulnerable armistice lines as the Auschwitz borders.
Nineteen years later the Arab states declared again their imminent intention to destroy Israel. In the June 1967 Six Day War Israel liberated Judea and Samaria from Jordan in a defensive war. Israel offered to give away the newly liberated West Bank to the Hashemite regime in Jordan and the Gaza Strip to its erstwhile Egyptian occupiers in return for a full and lasting peace. But the Arab League, meeting in Khartoum in August, 1967, delivered the infamous three No's: No peace with Israel, no negotiations with Israel, no recognition of Israel.
[b]It is within the narrow territory remaining for the Jewish state, if one includes Judea and Samaria, that the world now demands the establishment of yet another Arab state. Hamas controlled Gaza would be included in this future state to be called Palestine; a state which has never existed before by that name in all of recorded history certainly not as an independent Arab state.
Gaza has already been given to the Arabs and they have turned it into a terror base from which they have launched a lethal missile blitz against Israel numbering to date over 10,000 rockets.
Israeli leaders should never have accepted even one missile fired from Gaza at its citizens in southern Israel. To let thousands fall with relative impunity for so many years led the world to believe that it was acceptable. After all, if Israel wasn't interested in safeguarding its own civilians, why then should the world be. It was accepted as business as usual.
The Gaza War thus came as a surprise to the world community and, just as the Second Lebanon War, it was launched by Israeli leaders too late and ended too soon, leaving both Hamas in Gaza and Hezbollah in Lebanon free to wreak future havoc upon the Jewish state.
The disputed West Bank, which is the ancient biblical heartland of Israel, is now the territory U.S. Secretary of State, Hillary Clinton, is pressuring Israel to give away to the Arabs who call themselves Palestinians. This is the present day so-called two state solution and will dismember what is left of Israel and drive some 250,000 Jewish residents from their homes and farms. Why? Because just as in Jordan, Jews will not be permitted to live within Arab territory, while Arabs can remain free to live within Israel.
It is instructive to remember that upon the granting of the Palestine Mandate to Great Britain, an eminent British celebrity and supporter of Zionism, Josiah Wedgwood, addressed a Jewish crowd of thousands at the Royal Albert Hall in London in which he urged the audience to stand up for Jewish rights in its homeland.
According to the late Shmuel Katz in his groundbreaking biography of the great Zionist leader, Vladimir Ze'ev Jabotinsky, titled The Lone Wolf, Wedgwood said:
"... This lesson I want the new Jewish nation to learn and to get by heart: Stand up for your rights. Let us have more of the spirit in the Jewish movement of my good and gallant friend Jabotinsky."
Sadly, Israeli governments have become notoriously fearful of rejecting outright the deadly trap inherent in the so called two-state solution. Their muted responses have merely encouraged world leaders to repeatedly breathe new life into the discredited plan. The searing tragedy is that the two-state solution may presage for the Jewish people another Final Solution.
Perhaps the Secretary of State prefers to remain oblivious to the stark fact that the Arabs, whom she embraces and who today call themselves Palestinians, are as committed as their parents and grandparents before them to destroy the Jewish state; whatever size or shape its borders. The fact is that this is not a dispute over borders; this is a religious war and the Arabs, so long as the overwhelming majority remain Muslim, will never accept the existence of a non-Muslim state in territory previously conquered in the name of Allah -whatever the size or shape of its borders.
Only just recently, Muhammad Dahlan, speaking on behalf of Fatah and the Palestinian Authority, declared on PA TV that the PA will not recognize Israel one of the primary demands made upon the Palestinian Arabs in the Oslo Peace Accords. Indeed, Dahlan admitted that the only reason they meet with Israelis at all is in order to continue receiving the immense flow of international funds.
Is Ms. Clinton aware of this Arab charade? Or does she dismiss it and care not for the absence of a sincere and honest Palestinian Arab peace partner and the inevitable plight of the quarter of a million plus Jewish residents who will become displaced refugees by enacting the next two-state solution. Perhaps she cares little for the resulting takeover of Judea and Samaria by Hamas and the inevitable missile blitz that will be launched by the Palestinian Arabs upon the rest of Israel.
Incidentally, what irony when the homes of Peace Now members living in Tel Aviv become daily targets of missiles launched from the very areas they campaign for their fellow Jews to be expelled from.
One wonders if Secretary Clinton knows that eighty seven years ago an original two-state solution was enacted in infamy. If she does, it is unlikely that she cares anymore than the rest of the Obama Administration or State Department cares.
And what of those Jewish Americans who serve the Secretary and sadly will be in the forefront of destroying Jewish patrimony in the Land of Israel. Will they have a conscience or feel shame for the calamity they create? I think not.
Pragmatist's summary of the history is accurate and excellent. The West Bank was an essential part of the original land of the Jews, and should all remain a part of Israel. Most current observers do not realize that the Palestine Mandate included all of the present country of Jordan, as well as the Golan Heights. In 1947, Palestinians left (and some were expelled from) the territory that was to become Israel, and they moved to another part of Palestine, not to another country. They should remain there. Many Arabs remained in Israel, and they became citizens of the new state of Israel. The two-state solution already exists: the Arabs are entitled to Jordan, and the Jews to Israel, including the West Bank.
When Jordan gained control of the area of the West Bank in 1947, Jews were not allowed there at all, and even tourists were not allowed to visit the holy sites, if their passports showed they had visited Israel beforehand.
The underlying problem that must be understood, that will render this an eternal battle, is the Islamic principle that any land or territory that has been conquered by jihad remains forever the property of Allah, and may only be rightfully governed by his Islamic state. Israel was conquered by Muslim jihadists in the seventh century, and the Muslim claim to it is now eternal. That is the reason for Arab intransigence and unwillingness to ever recognize the right to existence of Israel.
Moshe Dann is a former assistant professor of history, a writer and a
journalist. He lives in Jerusalem.
This article appeared April 4, 2011 in Pajamas Media
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