Doc's Talk: Jews building settlements in Judea and Samaria is legal

Wednesday, January 02, 2013

Jews building settlements in Judea and Samaria is legal

By Salomon Benzimra, author of the book: The Jewish People's Rights to the Land of Israel (http://www.amazon.com/Jewish-Peoples-Rights-Israel-ebook/dp/B0065WZM14)

First and foremost, the first five pages of the Levy Report ("Legal Argument") clearly summarizes why Israel is not an occupying power in Judea and Samaria – and East Jerusalem - and, therefore, why the settlements are not illegal. You can find the English version of these 5 pages here:

http://elderofziyon.blogspot.co.il/2012/07/english-translation-of-legal-arguments.html

The following are the points on which this claim rests:

1. The legality of the "settlements" cannot be dissociated from the notion of "occupation." As long as Israel is viewed as an "occupying power," not only the "settlements" can be construed as illegal but the whole of Israel becomes "occupied territory" since there is no difference between land acquired or repossessed - a better term would be "liberated" - in 1967 and 1948-49 respectively.

2. The Fourth Hague Regulation of 1907 defines "occupation" in Article 43: it presupposes that "the authority of the legitimate power ...passed into the hands of the occupant." The annexation of Judea & Samaria (renamed in 1950 "The West Bank') by Jordan has never been recognized as "legitimate."

3. The San Remo Resolution (April 1920) integrated the Balfour Declaration (November 1917) to Article 22 of the Covenant of the League of Nations (June 1919) and resulted in the following:

3a: The provisions of the Balfour Declaration (i.e. the establishment of a Jewish National Home in Palestine) became binding upon Britain, which the Supreme Council of the Allied Powers selected as the Mandatory Power in the land.

3b. The establishment of a Jewish National Home in Palestine was no longer a mere a British foreign policy decision, but became an act of international law.

3c. Pursuant to the San Remo Resolution, in July 1922, the Mandate for Palestine was confirmed, approved by the 52 members of the League of Nations and entered into force in September 1923.

3d. No "special rights" were conferred to the Jewish people. The Supreme Council recognized a pre-existing right by calling for the "reconstitution" of the Jewish National Home in Palestine – and not the "creation" – it being clearly understood that it would turn, in time, into a sovereign Jewish State, pending on an expected Jewish population majority.

4. Following the Churchill White Paper – the official British policy for Palestine - of June 1922, Britain separated the Transjordan part of Palestine – the land east of the Jordan River - and made it an exclusively Arab land where no organized Jewish settlement was allowed, as per the inserted Article 25 of the Mandate. However, in "western Palestine" - from the Jordan River to the Mediterranean Sea - all the provisions of the Jewish National Home were upheld, including the encouragement of Jewish settlement of all lands (as per Article 6).

5. When the League of Nations ceased to exist, in 1946, following the creation of its heir, the United Nations, the acquired rights of the Jewish people remained enshrined in the UN Charter (Article 80).

6. The UN General Assembly Resolution 181 recommended a further partition of the remaining "western Palestine" into a Jewish State and an Arab State. Had this recommendation been accepted by both parties, the terms of the Mandate would have been superseded. But that was not the case, due to the Arabs' rejection of the Resolution. Besides, the recommendation formulated in UNGA Res. 181 violated the UN Charter (Article 80) and the terms of the Mandate, still in force in 1947, especially Article 5 which prohibited the cession of any territory of Palestine to a foreign power.

7. Since no agreement occurred in 1947 pertaining to a further partition of Palestine, and no other binding agreement has been entered into between Israel and the Arabs ever since, which might affect the Jewish sovereignty over western Palestine, the provisions of the Mandate still hold, and especially the title to the land, vested in the Jewish people and that includes Judea and Samaria.

8. Point #7 therefore refutes the notion of Israel being an "occupying power" in any part of western Palestine –From the River to the Sea - since one cannot occupy land on which it has legal title.

9. Because the State of Israel is not an "occupying power" in any part of western Palestine, it follows that the Fourth Geneva Convention does not apply. This is especially true for Article 49 which deals with transfer and deportation of populations to and from occupied territories, in addition to other legal aspects (the nature of the Contracting Parties, the non-forcible transfers, etc.), and the preposterous situation of ethnic cleansing, which the Arabs demand that would result in making Judea and Samaria judenrein.

Conclusion: The claim that it is illegal for Jews to build in Judea and Samaria and that Israel "occupies" the land is an utter lie, arises from deliberate ignorance, pandering to the Arab/Muslim world, anti-Semitism or all of the above combined.

Guest Comment:

Statement: International law, under which Judea and Samaria is part of the legal land of the state of Israel has become a political law and thus the world has come to believe that Israel has no claim to any land beyond the 'Green Line'.

All the UN resolutions condemning Israel on the "settlements" are based on lies, totally ignoring international law that has become international political law.

It is just like admitting that the existence of the Palestinian Authority and its recent "promotion" in the UN is based on going AGAINST the UN charter, AGAINST the Montevideo Agreement on what determines a state to be, etc. It's exactly the same.

The main problem is not the lack of pertinent international law, but rather the practical irrelevance of any such law in a world that still basks in ritualistic anti-Semitism. Europe, as the always-residual source of such hatred, will never support Israel, irrespective of authoritative international law. Hence, the core problem here is not jurisprudential, but geopolitical. This is a problem that must be solved by Israelis only.

In the meantime, Israel is NOT making its legal case for construction in Judea and Samaria and is not defending itself. As it stands now, if Israel continues to build beyond the 'Green Line', the European Union may even begin taking harsher punitive measures against it. As long as the government of Israel does not promote the jurisprudence that the "settlements" in Judea and Samaria are legal, world pressure will continue and get even worse.

We need to push back! And we begin right here with the facts and truth. Every time we see anyone complaining about the illegality of the "settlements" in Judea and Samaria we send them the below explanation as our reply. The government of Israel needs to use this one page as well. Enough of the lies.

Below is a 9-point summary explaining why Jews building in Judea and Samaria is NOT illegal. One page with the facts that settlements in Judea and Samaria are NOT illegal to act as a tool to push back and defend Israel from the anti-Semites in Europe and beyond.

Nurit Greenger

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

Doc's Talk