Why Israel’s West Bank Settlements Are Legal

Why Israel’s West Bank Settlements Are Legal 

Based on David M. Phillips. The Illegal-Settlements Myth. Commentary Magazine. December 2009. https://www.commentarymagazine.com/articles/the-illegal-settlements-myth/ It is troubling that people, including Jews, accept the idea that the West Bank (Judea and Samaria) is Arab territory when, in fact, it is not owned by anyone. Eugene Rostow, U.S. Undersecretary of State in 1967 and former dean of Yale Law School, stated that Jews have a right to settle it under the British Mandate and that this right is "unchallengeable as a matter of law." He said it should be considered "unallocated territory" (in contradistinction to "occupied" [or even "disputed"]) territory. Therefore, Israel has the status of a legitimate claimant. It can be said, in fact, that if one accepts the arguments being made to support the view that Israeli settlement in the West Bank is illegal, then all of Israel is illegal (see Conclusion below). The History of Ownership Though routinely referred to nowadays as “Palestinian” land, neither Jerusalem nor the West Bank has ever been under Palestinian Arab sovereignty. The Romans gave the name “Palestine” (from “Philistine”) to the area of the Middle East they controlled. Until it was vanquished in World War I, the Ottoman Empire (1299 to 1923) controlled pretty much all of the Middle East. Because British-led Allied troops had routed the Turks from Palestine, the League of Nations gave the British conditional control of the area under a mandate. It authorized England to facilitate the creation of a “Jewish National Home,” while respecting the rights of the native Arab population. British Colonial Secretary Winston Churchill partitioned the mandate in 1922 and gave the East Bank of the Jordan to England’s Hashemite Arab allies, who created the Kingdom of Jordan (aka Trans-Jordan). After World War II, England gave up its mandate authority, and its troops departed in May 1948. Israel immediately declared statehood, whereupon Jordan and four other Arab countries invaded. Israel survived, but the fighting left Jordan in control of what would come to be known as the West Bank, as well as approximately half of Jerusalem, including the Old City. Jordan illegally annexed the territory. Upon Israel’s stunning 1967 victory against another Arab onslaught, Jordan lost its control of Jerusalem and the West Bank. At the end of the war, the heads of eight countries, including Egypt, Syria, and Jordan (all of which lost land as the result of their failed confrontation with Israel), met at a summit in Khartoum, Sudan, and agreed to three principles concerning Israel: 1. No peace with Israel 2. No recognition of Israel 3. No negotiations with Israel Though many Israelis hoped to trade most of the conquered lands for peace, they had no takers. No one even suggested that any of the conquered land belonged to the “Palestinians,” as there was no concept of a Palestinian “nation” at the time. In 1970, the Palestine Liberation Organization fomented a bloody civil war against Jordan. With Israel’s open support, King Hussein survived the threat, but at that point, he wanted to reduce, not enlarge, the Palestinian population in his kingdom. He therefore disavowed any claim to the lands he lost in 1967. Applicable International Law Opponents of West Bank settlement have based their arguments on one or both of the following:  The 1907 Hague Regulations, whose provisions are primarily designed to protect the interests of a temporarily ousted sovereign in the context of a short-term occupation  The 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime Most of the objections to the West Bank settlements have been based on an article in The Hague Regulations that bars an occupying power from confiscating private property. Israel requisitioned land from private Arab owners to establish some early settlements; this differs from confiscation, because compensation was paid for use of the land. Since 1979, all Israeli settlements legally authorized by the Israeli Military Administration have been built either on lands that Israel classifies as state-owned or “public,” or, in a small minority of cases, on land purchased by Jews from Arabs after 1967. The term “public land” includes uncultivated rural land not registered in anyone’s name and land owned by absentee owners, both of which are considered public land under Jordanian and Ottoman law. (Even Mishnaic law allows certain squatters’ rights to property if they have not been challenged by its owner for three years. [Baba Batra Ch. 3]) The article of the 1949 Geneva Convention that prohibits forcible transfer of an occupier’s subjects into or out of occupied territory is often cited by settlement opponents. However, the Gaza and West bank territories were not forcibly settled; some were even settled without Government permission. Moreover, the forcible deportation of people from the settlements would similarly violate the Convention, which is what Israel did when it removed settlers from Gaza. The existence of Jewish communities in the West Bank before the creation of the State of Israel is completely ignored. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, in at least one case (Hebron), the community’s population was slaughtered. Conclusion People who oppose West Bank settlements while considering themselves friends of Israel make a dangerous argument. By falsely claiming that international law prohibits Israeli settlements on unallocated territory that has no legitimate owner (other than private owners of individual parcels of land), they will inevitably have to conclude that the State of Israel is itself illegitimate because it too was established on land that was unallocated. Conversely, Arabs who build homes in the West Bank really are illegal settlers.