By Moshe Dann
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.
overeignty 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.