Eli Hertz and Nurit Greenger
For everyone’s attention:
Are the Jewish-Israeli villages and towns in Judea and Samaria legal or illegal?
For once and for all we put the record straight!
Way too often we hear that the ‘settlements programme’ that followed the 1967 occupation of Judea and Samaria, an area many still elect to call the ‘West Bank’ so it sounds or appears to be a foreign territory and not part of the Land of Israel are regarded by most international bodies as a serious violation of international law. Many writers, commentators, media broadcasters, officials in many countries, anti-Israel activists, whether organizations or individuals, and people who simply lack the basic and correct facts and knowledge insinuate that this view is based on the interpretation of Article 49 of the Geneva Convention as well as a series of UN Security Council resolutions’ that deem the settlements to be illegal. Personally I do not think that a Jew making his home in Judea of Samaria is an illegal act. But who am I to doubt the ‘pundits’ and their claim it is?
So I presented this long overdue question to Eli Hertz of http://mythsandfacts.org/ who is número uno expert in this filed and here is the result that we all need to know and recite to those culprits who argue that homes of Jews built or are about to be built in Judea, Samaria and [‘East’] Jerusalem are illegal.
Eli Hertz divided the topic into two parts:
1. ‘Geneva Convention’ - Article 49
2. Legal occupation
These two points will answer the legal aspects of Jews’ right to settle in any place, meaning any place between the Jordan River and the Mediterranean Sea.
‘Geneva Convention’ - Article 49
The term “occupied territory,” which appears in the Fourth Geneva Conventions, originated as a result of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.
Background: The language of Article 49 was crafted in the wake of World War II and the Nazi occupation — an occupation that led to a war of aggression in which Nazi Germany attacked its neighbors with impunity, committing a host of atrocities against civilian populations, including deportation and displacement of local populations in occupied Europe. Millions were sent to forced labor camps and those of particular ethnic origin, most notably the Jews, were sent to their deaths in the gas chambers. The drafters of Article 49 were concerned with preventing future genocide against humanity.
Using the Geneva Convention to describe the situation in Israel is ironic since Israel customarily follows international humanitarian law without being told or forced to do so by outside authorities. Even a cursory look at the West Bank and Gaza will show that Article 49 is clearly inapplicable.
But that has not stopped critics and enemies of Israel, including members of the UN and organs such as the International Court of Justice (ICJ) from using the Geneva Convention as a weapon against Israel even when statements by authoritative analysts, scholars and drafters of the document contradict everything said by those who distort history for politically motivated reasons. What do legal experts, scholars and world-respected expert say in reference to Article 49’s applicability and relevance to the Israeli-Arab conflict?
Article 49, Paragraph 1 prohibits:
“… Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country …”
Israel does not forcibly and arbitrarily deported or transferred innocent “protected” Arab-‘Palestinians’ from the ‘Territories’ into areas within the 1967 Green Line.
Occasional deportation of individuals to “any other country” is based solely on security matters and is permissible under Paragraph 2 of the Article.
As to the use of the term “occupied territory” –
“… from occupied territory to the territory of the Occupying Power …”
Professor Julius Stone,[i] a leading authority on the Law of Nations, categorically rejected the use of the term ‘occupied territory’ to describe the territories controlled by Israel on the following counts:
First, Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and does not belong to any other state; legally, it is “unallocated territory.”
Second, the drafting history of Article 49 [Protection of Civilian Persons in Time of War] – that is, preventing “genocidal objectives” must be taken into account. Those conditions do not exist in the Israeli case.
Third, settlement of Jews in the West Bank is voluntary and does not displace local inhabitants. Moreover, Stone asserted: that “no serious dilution (much less extinction) of native populations” [exits]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred].”
Article 49, Paragraph 5 — is of a particular interest. The “Occupying Power” may not
“ … detain protected persons in an area particularly exposed to the dangers of war …”
It is worth pointing out the reality on the ground. Local Palestinian terrorists — bomb makers and other unlawful, hostile and deadly combatants are operating from within the civil population designated by this Article as “Protected persons” causing death and misery to their own ‘brethren.’
Article 49 Paragraph 6 — Arab opposition to Jewish settlements is based on the last paragraph of Article 49. The “Occupying Power” may not
“… deport or transfer parts of its own civilian population into the territory it occupies.”
Professor Eugene V. Rostow, a drafter of UN Security Council Resolution 242 and international law expert, concludes that the Convention is not applicable to Israel’s legal position and notes:
“The opposition to Jewish settlements in the West Bank also relied on a legal argument — that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.”
Rostow reminds us that:
The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’.… A trust does not end because the trustee dies [or] resigns. …
UN Article 80 was specifically created in 1945 to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. The legal rights of settlements survived the British withdrawal in 1948. Rostow states:
“This paragraph of Article 80, commonly known as ‘The Palestine Article,’ was debated and passed with the problem of the Palestine Mandate very much in mind.”
Several leading indicator demonstrate that Palestinians (when not engaged in hostilities) are better off under Israeli control than under their ‘brethren’ in neighboring Arab states.
Palestinians’ standard of living continued to rise steadily in the early 1980s but dropped sharply under corrupt self-rule that was a consequence of the Oslo Accords, plummeting to an all-time low since September 2000 when Palestinians again opted for armed conflict.
The infant mortality rate of Palestinians in Gaza and the West Bank is far lower than the rate in most of the rest of the Arab world. In the West Bank, for example, the infant mortality rate was 21 for every one thousand births, while in Egypt it is 59 and in Saudi Arabia it is 58 per thousand births respectively. The data imply that the same Palestinian Arabs enjoy human rights superior to their brethren in most Arab countries.
Legal occupation
The “Mandate for Palestine,” an historical League of Nations document, laid down the Jewish legal right to settle anywhere in western Palestine, a 10,000-square-mile area between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law and valid to this day.
The legally binding document was conferred on April 24, 1920, at the San Remo Conference, and its terms outlined in the Treaty of Sèvres on August 10, 1920. The Mandate’s terms were finalized and unanimously approved on July 24, 1922, by the Council of the League of Nations, which was comprised at that time of 51 countries,[iv] and became operational on September 29, 1923.
The “Mandate for Palestine” was not a naive vision, briefly embraced by the international community in blissful unawareness of Arab opposition to the very notion of Jewish historical rights in Palestine. The Mandate weathered the test of time: On April 18, 1946, when the League of Nations was dissolved and its assets and duties transferred to the United Nations, the international community, in essence, reaffirmed the validity of this international accord and reconfirmed that the terms for a Jewish national home were the will of the international community, a “sacred trust” — despite the fact that by then it was patently clear that the Arabs opposed a Jewish national home, no matter what the form.
Many seem to confuse the “Mandate for Palestine” [The Trust], with the British Mandate [The Trustee]. The “Mandate for Palestine” is a League of Nations document that laid down the Jewish legal rights in Palestine. The British Mandate, on the other hand, was entrusted by the League of Nations with the responsibility to administrate the area delineated by the “Mandate for Palestine.”
Great Britain [i.e., the Mandatory and Trustee] did turn over its responsibility to the United Nations as of May 14, 1948. However, the legal force of the League of Nations’ “Mandate for Palestine” [i.e., The Trust] was not terminated with the end of the British Mandate. Rather, the Trust was transferred over to the United Nations.
Eli Hertz
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From now on, when anyone tells you or you read that it is illegal for a Jew to settle in Judea, Samaria and [East] Jerusalem you tell this anti-Semite the following:
The “Mandate for Palestine,” — The Trust — is valid and holds all the power of international law to this very moment. This historical and most important document the League of Nations issued, laid down the Jewish legal right to settle anywhere in western Palestine, a 10,000-square-mile area between the Jordan River and the Mediterranean Sea.
Jews are law abiding people. Since that this entitlement to settle anywhere in the area between the Jordan River and the Mediterranean Sea has not been altered in international law and is valid to this day, a Jew who wants to build his home and settle in this area remains a [international] law abiding person thus cannot and must not be stopped by anyone, even if that person in the United States of American President, whose political agenda and motivational reasons are based on lies, deception and revision of Jewish history.
Let us stay on course with the truth not myth and lies!
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