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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