50 Years of Legal Settlements

“Israel is committing war crimes: Israel is an occupying power, a violator of international law and guilty of war crimes when building settlements in occupied territory.” We have been hearing these accusations for decades by now. Over and over again, experts, judges, lawmakers, politicians but especially journalists and other non-experts repeating one liners have explained how Israel is infringing international law and suggest the Jewish people get special treatment because of the holocaust. Some would go even further than this narrative and say: “The occupation is illegal, the Israelis are illegally occupying the West Bank”. However, this is nowhere near the truth. In fact, the ones spreading these false accusations have no interest in truth, facts or anything that resembles it. Luckily, there are a lot more of these experts, judges and lawmakers who know how to put politics aside and treat this matter solely based on International law.

Occupation

Let’s eliminate this category of “experts” right here and right now: there is no basis to the claim that Israel is illegally occupying the ‘West Bank’. The contrary is true, the occupation is definitely legal under UN resolutions 242 and 338 enabling Israel to “new defensible borders”. In fact, the Security Council carefully chose the words: “withdrawal of Israeli armed forces from territories occupied in the recent conflict” intentionally omitting the definite article “the” and instead referred only to “territories” and definitely did not include the word “all” before the word “territories”. Thus, we can confidently conclude that the Security Council recognised that the 1949 Armistice Lines were neither legally binding nor secure boundaries. Lord Caradon, the British UN ambassador at the time stated in 1974: “it would have been wrong to demand that Israel returns to its positions of June 4, 1967 because those positions were undesirable and artificial”. And then again, after the Yom Kippur war, Security Council resolution 338 corroborated resolution 242 making it unambiguous and clear to all: Israel has the right to new defensible borders.

Military law

Ironically, these resolutions allow the world to continuously ignore past legally binding declarations and resolutions. As Israel accepted the status of “occupying force” even though in its right based on Resolution 242, it has indirectly put aside past resolutions which make Israel the rightful owner of Judea and Samaria. Israel administered military law instead of Israeli law, declaring itself an occupying force. Big mistake.

San Remo

In practice, this mistake puts aside the San Remo Resolution as well as the treaties of Sèvres and Lausanne and the Mandate for Palestine Resolution. The Supreme Council of the Principal Allied and Associated Powers (Britain, France, Italy, Japan, USA) convened in San Remo in April 1920. Its purpose was to deliberate on the future of the territories which had been captured from the Ottoman Empire. This council ended up adopting the following Resolution:

“The mandatory (I.e Britain) will be responsible for putting into effect the declaration originally made on Nov 8, 1917, by the British government, and adopted by the other Supreme Council, in favour of the establishment in Palestine of a national home for the Jewish people..”

International Court of Justice

ICJ’s advisory opinion in 2004 completely ignored all past declarations and resolutions and didn’t recognise Israel’s unique character with its very serious security requirements. The court has failed to respect some basic principles of international law and has let public perception influence its opinion.

The court even went as far as to suggest that Article 51 of the Charter, which allows states to defend themselves, doesn’t apply to Israel! The Article states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN”. The court argued that the self-defence argument doesn’t apply to Israel as the attack did not come from a “foreign state”. Yet the Article doesn’t specify “foreign states” or states or anything of that sort and only refers to “armed attacks”.

Furthermore, the ICJ violates its own basic principle of the “sovereign equality of states” meaning that no state in international law can, without its consent, be compelled to submit its disputes with other states either to mediation or to arbitration, or any other kind of pacific settlement. Contrarily to the Western Sahara advisory opinion where the sovereign equality of states has been respected by the ICJ, it has been completely disregarded when the court treated Israel’s case: no ‘sovereign equality of states’ when it comes to Israel.

However, in order for us not to deviate from the basic principles of international law, there are 2 simple questions to be answered:

1. Does international law prohibit Jews from living in these territories?   2.Does it require the creation of a Palestinian State?

The answer to both is NO.

This means that the ICJ politicised Israel’s matter to the extent it ignored some basic fundamental laws.

Rightful owners

The Israeli-Arab conflict has been marked as one of the most difficult questions to solve in our era. This is why passing off Israel to be an infringer of the law, gives the world the illusion it can force Israel to give up on what it rightfully owns. While many would admit that there is no solution in the foreseeable future, others should recognise that accusing Israel of infringing the law will not bring us any closer to a solution, instead, it will delay us even further.

The only reason why Israel ever decided to regard itself as the occupier and indirectly put aside past resolutions, has always been the hope for a real peace with its neighbours. The Jewish people wanted to try the two state solution because it desperately sought a home and counted on this solution to bring peace. It didn’t. It only brought more war, incitement and terror. While the San Remo Resolution has never been cancelled or followed by any peace agreement and as the archeological discoveries keep piling up, Israel can’t legally or morally be denied ownership of this land.

Although UN members have made Israel’s case the center of all atrocities in the world and no matter how hard they try to portray Israel as the world’s worst infringer of the law, the fundamental principles of International law will always prove that the Jewish settlements in Judea and Samaria are legal after all.

About the Author
Jenny Aharon, political analyst and advisor at EP.
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