The decision by a commission of legal scholars, led by retired Israeli Supreme Court Justice Edmond Levy, that Israeli settlement in Judea and Samaria is legal created a storm of protest from the usual quarters.
Today I’m going to dissect one paragraph that epitomizes the misconceptions surrounding Israel’s legal rights in Judea and Samaria. It happens to appear in a New York Times editorial, but that’s really not important (unless you are still awed by the ignorance or malice of the editors of that newspaper).
Here is the paragraph:
Most of the world views the West Bank, which was taken by Israel from Jordan in the 1967 war, as occupied territory and all Israeli construction there as a violation of international law. The world court ruled this way in 2004. The Fourth Geneva Convention bars occupying powers from settling their own populations in occupied lands. And United Nations Security Council resolution 242, a core of Middle East policy, calls for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict.â€
Most of the world
This can’t mean most of the world’s 6.9 billion people, most of whom don’t give a rat’s posterior about Israel. It probably refers to most of the members of the UN General Assembly, where there has been an automatic majority against Israel on every imaginable subject since the 1970s. Is this supposed to add authority to their argument?
view the West Bank
“West Bank” is a term applied to what had previously been called by its biblical names, Judea and Samaria, by Jordan in 1950. Using this expression obscures the historical Jewish connection and suggests that Jordanian control of the area, which lasted only 19 years, was somehow ‘normal’.
which was taken by Israel from Jordan in the 1967 war
This continues the theme that the normal situation was usurped by Israel in 1967. But when Jordanian troops marched into the area in 1948, killing and driving out the Jewish population, they violated the provision of the Mandate that set aside the area of ‘Palestine’ for “close Jewish settlement,” and the one that called for the civil rights of all existing residents — Jewish or Arab — to be respected. It also violated the UN charter which forbids the acquisition of territory by force. Only Pakistan and the UK recognized the annexation of the area (even the Arab League opposed it).
The Jordanian invasion and annexation of Judea and Samaria was, in fact, illegal under international law. Israel’s conquest in 1967, on the other hand, can be seen as a realization of the terms of the Mandate.
as occupied territory
As I wrote yesterday, the concept of a ‘belligerent occupation’ does not apply here. What country owned the territory that Israel ‘occupied’? Not Jordan, which was there illegally, nor Britain, whose Mandate had ended, nor the Ottoman Empire, which no longer existed. The nation with the best claim was Israel, the nation-state of the Jewish people, who were the intended beneficiaries of the Mandate. Judea and Samaria are disputed, not occupied, and the Jewish people have a prima facie claim based on the Mandate.
and all Israeli construction there as a violation of international law. The world court ruled this way in 2004.
This refers to the advisory opinion against the security fence issued by the International Court of Justice. The opinion refers to Israel as an “occupying power” and says that the fence is built on “occupied Palestinian land,” despite the fact that there is no legally delimited border between Israeli and ‘Palestinian’ land.
The Fourth Geneva Convention bars occupying powers from settling their own populations in occupied lands. And United Nations Security Council resolution 242, a core of Middle East policy, calls for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict.â€
Since the land is not ‘occupied’, the Fourth Geneva Convention does not apply. And even if it were occupied, legal scholars (including the Levy commission) have made excellent arguments that the Convention was not intended to apply to voluntary ‘transfers’ of population like settlements, but to forced deportations like the Nazi transfer of German Jews into occupied Poland.
According to its drafters, UNSC 242 does not call for the withdrawal from all territories occupied in 1967, leaving room for the states involved to negotiate secure borders as part of a peace agreement:
(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;
(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.
Of course no such boundaries have been agreed upon. And if you think any Arab countries or the PLO are interested in terminating claims on Israel regardless of borders, I have a bridge you may be interested in.
So much for the international law experts on the Times editorial board and their statement that the decision was “bad law.” I’ll leave their arguments that it is “bad policy” and “bad politics” for another time.
Technorati Tags: Israel, Levy Commission, Judea and Samaria, NY Times
It’s a little disingenuous, when discussing the deed holder in the mind of God of Judea/Samaria, to talk about Jordan, the Brits, and the Ottoman Empire, the centennial of whose demise we will soon be celebrating, but not the Palestinians. Bu, of course,as has been pointed out by pens far more eloquent than mine, they have repeatedly made clear that they don’t want an inch unless they can have the whole thing! That really is the crux of the argument.
It should be pointed out the original drafters of the Fourth Geneva Convention never envisaged the prohibition on the forced movement of people by an occupying to lead to the absurd situation where it would be used to keep the Land Of Israel Judenrein – “cleansed of Jews.” The fact the Israeli government adopted this interpretation in Gaza does will never make it legal, moral or just. Israel’s government had no authority to deprive Gaza’s Jews of their national rights just as it has no authority to deprive the Jews of Judea and Samaria of their national rights. A cessation of the exercise of national rights at the behest of the exercise of illegitimate government power (as occurred in the context of the Gaza Expulsion) does not in any way nullify the national rights themselves. They exist in perpetuity. It follows the world doesn’t possess either the authority to unilaterally deprive the Jewish people of their national rights.
Which brings us to UN Resolution 242. It calls for recognized and secure boundaries to be decided in negotiations between Israel and its neighbors. But it does not require Israel to hold Judea and Samaria in trust forever for the Arabs. There is nothing in international law that prevents Israel from unilaterally annexing Judea and Samaria. Note 242 does not call for the establishment of a Palestinian Arab state nor does it prejudice Israel’s valid claim to exercise national sovereignty in the Land Of Israel. Now its true the world might not accept it any more than it has never accepted Israeli sovereignty over Jerusalem – but what matters is not what the world says but what the Jewish people do in their own country – they have the last word there and its the determinative one.
The world still has great difficulty accepting the Jews are a sovereign people. By not relinquishing on their national rights, Israel is never going to get the world to love it – it will never happen – but Israel can gain its lasting respect. The way forward to peace lies not in Jewish servility to the Arabs and the world but in showing them there are things no Jew will ever compromise on – even for the sake of peace. The principles of Zionism and Jewish nationhood, of the exercise of Israeli sovereignty over Jerusalem and the maintenance of Jewish national rights in the Land Of Israel, in a word are non-negotiable. This should be Israel’s “red line” in its dealings with the Arabs and the world.
Israel can certainly say “no” to the New York Times and its biased, anti-Israel editorials.
Lise:
‘The Palestinians’ never were sovereign in or even de facto controlled Judea and Samaria (at least until Oslo gave them some degree of autonomy in areas A and B). How could Israel have ‘occupied’ their country when it wasn’t a country and they weren’t sovereign?
The NY Times and all of the supporters of the Palestinian Arabs have made claims about international law, not about the mind of God, and that is what I addressed. ‘Occupation’ has a meaning in international law and it can’t be whatever Humpty Dumpty wants it to mean. It doesn’t mean “the presence of Jews in a place that makes Arabs mad.”
If I wanted to talk about what is in the mind of God, I might talk about Abraham buying the Machpela from the Hittites (not the ‘Palestinians’, they didn’t exist!)