The
international community and the State Department may not like the West
Bank settlements, but they are clearly not illegal and Jews have a clear
legal right to live there.
No sooner had retired Israeli Supreme Court Justice Edmund Levy
issued an 89-page legal opinion that seemed to confirm the legality of
West Bank settlements, than the Obama administration chimed in with a
well-worn criticism of the report’s findings, the long-held view that
the presence of Jewish residents in Judea and Samaria violates
international law. Levy’s committee had found that “Israel does not meet
the criteria of ‘military occupation’ as defined under international
law” in the West Bank, and that claims that they exist in violation of
international law are baseless.
But Secretary of State Hilary Clinton’s office wanted no part of
the report’s findings. “We do not accept the legitimacy of continued
Israeli settlement activity and we oppose any effort to legalize
settlement outposts,” said her spokesman, Patrick Ventrell. And, he
added, the State Department was “concerned about it, obviously.”
The problem with this defective diplomacy, as is often the case
when Israel is concerned, is that operates in what Melanie Phillips has
called “a world turned upside down,” where the perennial victim status
of the long-suffering Palestinians trumps any sovereign rights of Israel
regarding its borders, security, and even its survival in a sea of
jihadist foes who yearn for its destruction. The settlement debate has
also been hijacked by the Arab world and its Western apologists who,
willingly blind to history, international law, and fact, continue to
assign the blame for the absence of peace on the perceived offenses of
occupation and Israeli truculence. Thus, Secretary Clinton and her
predecessor, Condoleezza Rice, have both referred to the nuisance Israel
causes by letting Jews live in the West Bank, against the wishes of the
Palestinians who view that territory as once and forever theirs, as
“unhelpful” in seeking a viable solution to Palestinian statehood.
What is truly “unhelpful,” however, are the repeated references to
the West Bank and Gaza, as well as East Jerusalem, as “Arab” land, the
putative Palestinian state in waiting, encumbered only by Israeli
oppression, the dreaded occupation, and those pesky settlers. This
widely held notion that European Jews, with no connection to historic
Palestine, colonized Arab land and displaced the indigenous Palestinian
population, of course, is a key part of what Professor Richard Landes of
Boston University defines as the “cognitive war” against Israel; it
serves the perverse purpose of validating Arab territorial rights to the
West Bank and Gaza, and, more importantly, casts Israelis as squatters
who have unlawfully expropriated land that is not — and never was —
theirs.
That is a convenient fable, as is the fictive people that the
Palestinians have been conjured up to be: an indigenous nation that had
sovereignty, a coherent society, leadership, and some form of continuous
government — none of which, obviously, have ever existed. More to the
point, it is “unhelpful” to overlook the fact that not only all of the
land that is current-day Israel, but also Gaza and the West Bank, is
part of the land granted to the Jews as part of the League of Nations
Palestine Mandate, which recognized the right of the Jewish people to
“close settlement” in a portion of those territories gained after the
breakup of the Ottoman Empire after World War I.
According to Eugene V. Rostow, the late legal scholar and one of
the authors of UN Security Council Resolution 242 written after the 1967
war to outline peace negotiations, “the Jewish right of settlement in
Palestine west of the Jordan River, that is, in Israel, the West Bank,
Jerusalem, and the Gaza Strip, was made unassailable. That right has
never been terminated and cannot be terminated except by a recognized
peace between Israel and its neighbors,” something which Israel’s
intransigent Arab neighbors have never seemed prepared to do.
Moreover, Rostow contended, “The Jewish right of settlement in the
West Bank is conferred by the same provisions of the Mandate under which
Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of
Israel was created,” and “the Jewish right of settlement in the area is
equivalent in every way to the right of the existing Palestinian
population to live there.”
The Six Day War of 1967, in which Israel recaptured Gaza and the
West Bank, including Jerusalem, resulted in Israel being cast in another
perfidious role—in addition to colonial usurper of Arab land, the
Jewish state became a brutal “occupier” of Arab Palestine, lands to
which the Jews presumably had no right and now occupied, in the opinion
of many in the international community, illegally. But that “unhelpful”
view again presumes that parts of the territory that may someday
comprise a Palestinian state is already Palestinian land, that the
borders of the putative Palestinian state are precise and agreed to, and
that Jews living anywhere on those lands are now violating
international law.
When did the West Bank, Gaza, and East Jerusalem become Palestinian
land? The answer is: never. In fact, when Israel acquired the West Bank
and Gaza and other territory in the defensive war 1967 after being
attacked by Egypt, Syria, and Jordan, the Jewish state gained
legally-recognized title to those areas. In Israel’s 1948 war of
independence, Egypt, it will be recalled, illegally annexed Gaza at the
same time Jordan illegally annexed the West Bank—actions that were not
recognized by most of the international community as legitimate in
establishing their respective sovereignties. Israel’s recapture of those
territories in 1967, noted Professor Stephen Schwebel, State Department
legal advisor and later the President of the International Court of
Justice in The Hague, made the Jewish state what is referred to as the
High Contracting Party of those territories, both because they were
acquired in a defensive, not aggressive, war, and because they were part
of the original Mandate and not previously under the sovereignty of any
other High Contracting Party. “Where the prior holder of territory had
seized that territory unlawfully,” Schwebel wrote, referring to Jordan
and Egypt, “the state which subsequently takes that territory in the
lawful exercise of self-defense has, against that prior holder, better
title.”
It is also “unhelpful,” not to mention morally repellent, for those
arguing on the Palestinian side, that the West Bank, like Gaza,
eventually be made Judenrein, totally absent of Jews, that, as
Mahmoud Abbas has loudly announced on more than one occasion, the future
Palestinian state would not have one Jew living within its borders.
Putting aside the fact that it is Israel that is continually derided for
being racist and exclusionary (despite having 1 million Arab citizens),
only in a world turned upside down would diplomats uphold a principle
that Jews—and only Jews—not be allowed to live in certain
territories, and particularly those areas to which they have irrevocable
and inalterable biblical, historic, and legal claims.
In fact, Professor Emeritus Jerold Auerbach of Wellesley College
has written that, protests from the State Department and many in the
West aside, “Israeli settlement throughout the West Bank is explicitly
protected by international agreements dating from the World War I era,
subsequently reaffirmed after World War II, and never revoked since . . .
The [Mandate for Palestine] recognized ‘the historical connection of
the Jewish people with Palestine’ and ‘the grounds for reconstituting
their national home in that country’ . . . This was not framed as a gift
to the Jewish people; rather, based on recognition of historical rights
reaching back into antiquity, it was their entitlement.”
While those seeking Palestinian statehood conveniently overlook the
legal rights Jews still enjoy to occupy all areas of historic
Palestine, they have also used another oft-cited, but defective,
argument in accusing Israel of violating international law by
maintaining settlements in the West Bank: that since the Six Day War,
Israel has conducted a “belligerent occupation.”
But as Professor Julius Stone discussed in his book, Israel and Palestine,
the fact that the West Bank and Gaza were acquired by Israel in a
“sovereignty vacuum,” that is, that there was an absence of High
Contracting Party with legal claim to the areas, means that, in this
instance, the definition of a belligerent occupant in invalid. “There
are solid grounds in international law for denying any sovereign title
to Jordan in the West Bank,” Stone wrote, “and therefore any rights as
reversioner state under the law of belligerent occupation.” So,
significantly, the absence of any sovereignty on territories acquired in
a defensive war—as was the case in the Six Day War of 1967—means the
absence of what can legally be called an occupation by Israel of the
West Bank, belligerent or otherwise. “Insofar as the West Bank at
present held by Israel does not belong to any other State,” Stone
concluded, “the Convention would not seem to apply to it at all. This is
a technical, though rather decisive, legal point.”
The matter of Israel violating Article 49 of the Fourth Geneva
Convention is one that has also been used promiscuously, and
disingenuously, as part of the cognitive war by those wishing to
criminalize the settlement of Jews in the West Bank and demonize Israel
for behavior in violation of international law; it asserts that in
allowing its citizens to move into occupied territories Israel is
violating Article 49, which stipulates that “The occupying Power shall
not deport or transfer parts of its own civilian population into
territory it occupies.”
The use of the this particular Geneva convention seems particularly
grotesque in the case of Israel, since it was crafted after World War
II specifically to prevent a repetition of the actions of the Nazis in
cleansing Germany of its own Jewish citizens and deporting them to
Nazi-occupied countries for slave labor or extermination. Clearly, the
intent of the Convention was to prevent belligerents from forcibly
moving their citizens to other territories, for malignant
purposes—something completely different than the Israel government
allowing its citizens to willingly relocate and settle in territories
without any current sovereignty, to which Jews have long-standing legal
claim, and, whether or not the area may become a future Palestinian
state, should certainly be a place where a person could live, even if he
or she is a Jew.
In fact, Professor Stone observed that those enemies of Israel who
point to the Fourth Geneva Convention as evidence of Israel’s abuse of
international law and wish to use it to end the settlements are not only
legally incorrect, but morally incoherent and racist. Stone suggested
that in order to recognize the validity of using the Fourth Convention
against Israel, one “would have to say that the effect of Article . . .
is to impose an obligation on the state of Israel to ensure (by force if
necessary) that these areas, despite their millennial association with
Jewish life, shall be forever judenrein. Irony would thus be pushed to
the absurdity of claiming that [the Fourth Convention], designed to
prevent repetition of Nazi-type genocidal policies of rendering Nazi
metropolitan territories judenrein, has now come to mean that Judea and
Samaria (the West Bank) must be made judenrein and must be so
maintained, if necessary by the use of force by the government of Israel
against its own inhabitants.”
And does anyone doubt that once the Palestinians, aided and abetted
by mendacious Western elites, diplomats, and an anti-Israel
international community of supporters, have purged Gaza, the West Bank,
and East Jerusalem of all Jews, that new calls will then arise accusing
Jews of “occupying” more “Arab” lands in Tel Aviv, Netanya, Tiberias, or
Haifa? Professor Rostow himself saw through the disingenuous talk about
legal rights when it came to the issue of the settlements. The
discussion was not, in his mind, “about legal rights but about the
political will to override legal rights.” In fact, the settlement debate
is part of the decades-old narrative created by the Palestinians and
their Western enablers to write a false historical account that
legitimizes Palestinian claims while air brushing away Jewish history.
“Throughout Israel’s occupation,” Rostow observed, “the Arab countries,
helped by the United States, have pushed to keep Jews out of the
territories, so that at a convenient moment, or in a peace negotiation,
the claim that the West Bank is ‘Arab’ territory could be made more
plausible.”
In the cognitive war against Israel, that “convenient moment” may well have arrived.
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