Elad Tzemach

Israel’s Right to the West Bank

Roughly 500,000 Israelis are living in settlements in the West Bank today. These settlements have become a controversial issue in world politics regarding their moral, historic, religious and international legal standing. The most pervasive message in the mainstream media and academia display these settlements as an obstacle to achieving peace between the Israelis and the Palestinians, as well as posit Israel as an illegal occupant that is governing the West Bank with Apartheid-like policies. However, hanging on to these claims as if they represent a conclusive and objective truth is morally wrong and historically inaccurate. Doing so without the full context of the situation is the most damaging type of rhetoric, as it does nothing more than to push a particular and uninformed political agenda.

The West Bank was the name given to the territory that was captured by and annexed to Jordan in the aftermath of Israel’s War of Independence in 1948. Since Jordan had done so illegally, its annexation was not formally recognized by the international community, except for the UK and Pakistan. In 1967, following the Israeli victory in the Six Days War, Israel captured the West Bank from Jordan, which created a unique challenge for the Israeli government. On one hand, Israel wanted to maintain control of that territory for security and historic reasons, but on the other, Israel did not want to annex the region as this would mean giving Israeli citizenship to all of the Palestinians living there (~700,000 in 1967), greatly changing the demographic of the Jewish state.  Today, there are close to 3 million Arabs living in the West Bank, which is almost half the amount of the Jews living in Israel.

Israelis started settling in the West Bank in 1967. Since then, there have been many disagreements and policy shifts between the varying Israeli governments. Some encouraged settlements, but have not annexed any land, and some limited and even evacuated them. Whatever the case, no government has given a verdict regarding the final status of these settlements and to this day they are not considered to be a part of Israel-proper. In the settlements, Ottoman law applies (from when the Ottomans ruled that land) with few changes made under the British Mandate and the Jordanians rule of the land. Legally, some laws that apply in Israel also apply to the Israelis that live in the West Bank too, but to apply an Israeli law in the West Bank, it needs to be adapted and implemented by an IDF colonel’s order.

Since the implementation of the Oslo Accords, the West Bank has been divided into three areas:

  • Area A (18%) which has full civil and security control by the Palestinian Authority. This is where most of the Palestinian population is, with no Israeli settlements around. Entry into this area is forbidden to all Israeli citizens.
  • Area B (22%) which has Palestinian civil control and a joint Israeli-Palestinian security control. This area includes about 450 Palestinian villages and their surrounding lands, with no Israeli settlements.
  • Area C (60%) which has full Israeli civil and security control, which is where all Israeli settlements are situated alongside many Palestinian villages. 400,000 Israelis and 300,000 Palestinians live in this area.

Israel is a Legal Force in the West Bank

The claim that these settlements are illegal in accordance with International Law is based on several multi-faceted assumptions that are often misrepresented without the necessary context. The one source used by those who claim settlements are illegal is Article 49 of the 4th Geneva Convention. This article states that an “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited.”

Does this apply to the West Bank?

First, Israel is not an occupying power and the West Bank is not an occupied land. The legal definition of “occupation” comes from the 1907 Hague Convention – some of the first treaties governing international laws of war and war crimes. The definition of an occupation can be found in Articles 42 and 43:

Article 42: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

Article 43: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The second precondition states that the territory must have had a “legitimate power”, and as previously stated, no such “legitimate power” existed during or before The Six Days War in 1967.

Second, putting aside definition for a moment, there is a controversy regarding the intent behind Article 49. It was written during World War II to prevent forced expulsion attempts for the purpose of a demographic change. In the circumstance of the West Bank, the Israeli government never forced Israelis to move to this region, highlighting the irrelevance of this argument. Morris B. Abram, an American lawyer who was involved in the drafting of the 4th Geneva Convention, claimed in 1990 that he knew the intention behind the convention very well, and it was not designed to cover situations like Israeli settlements in the West Bank.

So if no “legitimate power” has existed in the West Bank before Israel took over it in 1967, could Israel even have a legal claim for that land?

In 1922, following World War I and the surrender of the Ottoman Empire, a mandate for Palestine was given to Great Britain by the League of Nations. Under that mandate, based on The Balfour Declaration, all of Palestine was to be reserved exclusively for the establishment of a Jewish national home and a future independent Jewish state. This should come as no surprise, as Arab self-determination was being generously granted elsewhere and had led to the establishment of the 22 Arab states that still exist in the world today.

The purpose of the mandate was to implement The Balfour Declaration – facilitate Jewish immigration and support the establishment of a national home for the Jewish people in all of Palestine:

Article 5: The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power.

Article 6: The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency. referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.

By 1945 it was clear that The League of Nations had failed to prevent another world war, so it was replaced by the United Nations. This did not change the intention set by the League of Nations. Article 80 in Chapter 12 of the UN Charter preserves the rights granted to the Jewish people under the Mandate for Palestine, even after the Mandate’s expiry on May 14, 1948. According to that article and under international law (the UN Charter is an international treaty):

  1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.
  2. Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77.

This means that Jewish rights to Palestine cannot be altered in any way unless there had been a trusteeship agreement between the parties or states concerned. Such agreement would have converted the Mandate into a trust territory (a non-self-governing territory placed under an administrative authority by the UN) and included the terms under which the trust territory will be administered.

The only time a trusteeship agreement could have been concluded under Chapter 12 of the UN Charter was during the 3-year period from October 24, 1945, when the UN Charter entered into force, and May 14, 1948, when the British Mandate expired. Since no agreement of this type was made during that period Palestine was not converted into a trust territory and the Jewish rights that existed under the Mandate were to remain in full effect. Hence, denying Israel of the West Bank is bluntly illegal under Article 80, Chapter 12 of the UN Charter which commits that the UN upholds the Jewish rights given by the British Mandate and prohibits altering such rights in the absence of any trusteeship agreement.

The Fogel Family Massacre

The proximity of some of the settlements to Palestinian regions makes it easy for Palestinians to carry out terror attacks against Israeli settlers or steal and damage their property. One such horrifying event was the Fogel family massacre.

On March 11th, 2011, two Palestinian terrorists, Amjad Awad and Hakim Awad, managed to climb over the security fence guarding the Itamar settlement and remain undetected by security. They were from the Palestinian village of Awarta, only 2 kilometers away from Itamar. They wandered around the settlement for more than an hour looking for potential targets. The Fogel family house caught their attention as there was a Shabbat dinner happening there at the time with many family members and friends. At about 10:30pm, after they had assumed the guests had left and the Fogel family members had gone to sleep, they broke into the house and stabbed 2 of the children to death, Yoav (10 years old) and Elad (4 years old). They proceeded to the following bedroom to murder Ehud and Ruth, the deceased children’s parents. Thinking they had completed what they set out to do, they left the house. However, soon after, Amjad decided to go back to the house and look for weapons to be used to murder more Jewish people.

After re-entering back the house, he heard the crying of Hadas, a 3-months old baby that was still alive. He murdered her immediately by stabbing her in the head. Amjad failed to notice two other children were asleep in the house, but upon giving his confession, he claimed that he would not have hesitated to kill them as well, had he noticed them.

The Fogel family members who were murdered in their home in Itamar.

This horrifying event is only one example of hundreds if not thousands of terror attacks that have been perpetrated by Palestinian terrorists on Israeli settlements in the West Bank. This unmitigated terror is why every Jewish settlement is surrounded by fences and secured by a private security company or the IDF. It is why the movement of Palestinians is affected by checkpoints in some areas.

This is also why a separation between Israelis and Arabs in the West Bank is absolutely necessary, a survey conducted by The Hebrew University of Jerusalem and the Palestinian Center for Policy and Survey Research on April 2011, less than a month after the Fogel family massacre, revealed that a third of the Palestinians supported the brutal murder of the Fogel family.

It is Separation, Not Apartheid

The Israeli West Bank Barrier, built in 2002, is often brought up when discussing the Israeli-Palestinian conflict. Contrary to some commonly held beliefs, this barrier does not mark a border, but instead exists to serve as a barrier against Palestinian terrorism. In a future state that assumes political agreement with the Palestinian Authority, the official borders will be determined and the barrier can be adjusted or demolished as needed.

“It obliges us to establish a barrier wall which is the only thing that can minimize the infiltration of these male and female suicide bombers,” said the Defense Minister back then Benjamin Ben-Eliezer, who has emphasized that “the fence is not political, and is not a border.”

Some Palestinians call that barrier “The Apartheid Wall”, which is flagrant misuse of the term. Apartheid is defined as the implementation and maintenance of a system of legalized racial segregation in which one racial group is deprived of political and civil rights. Contrary to this definition, Arab and non-Jewish citizens of Israel enjoy the full range of civil and political rights. Arabs in the West Bank and in the Gaza Strip do encounter hardships as a result of Israeli policies, but those have been developed to promote security and thwart potential Palestinian terrorist actions, not to persecute or segregate. As such, the term Apartheid is completely irrelevant in this context and is instead being used to instigate an emotional response to Israeli policy.

From September 2000 to mid-2005, during the Second Intifada (Palestinian uprising), hundreds of Palestinian suicide bombings and terrorist attacks against Israeli civilians killed more than 1,000 innocent people and wounded thousands of others. The barrier was built during this time to prevent Palestinian terrorists from easily infiltrating into Israel as a form of defence against such attacks.

It had the overwhelming support from the Israeli public and was deemed legal by Israel’s Supreme Court. The barrier has proed its efficiency, as the number of suicide bombings carried out from the West Bank fell from 73 (between 2000 and July 2003 – the completion of the “first continuous segment”), to 12 (from August 2003 to the end of 2006). Even Palestinian terrorists have admitted the fence is a deterrent, emphasizing the barrier’s necessity. On November 11, 2006, Islamic Jihad leader Abdallah Ramadan Shalah said on Al-Manar TV the terrorist organizations had every intention of continuing the terror attacks, but “there is the separation fence, which is an obstacle to the resistance, and if it were not there the situation would be entirely different.”

It is not unreasonable or unusual to build a fence for security purposes. Israel already has fences along its borders with Lebanon, Syria, and Jordan. Most countries have fences to protect their borders and several use barriers in political disputes. Today, the United States is building a fence to keep out illegal Mexican immigrants, India has constructed a 460-mile barrier in Kashmir to stop infiltrations from Pakistan, Turkey has a barrier in the province of Alexandretta, which Syria claims as its own, Spain built a fence, with funds from the European Union, to separate Ceuta and Melilla from Morocco and to prevent poor people from sub-Saharan Africa from entering Europe.

The Role of the Palestinian Authority (PA)

The Israeli West Bank Barrier is not the only cause of Palestinian hardships in the West Bank. Corruption in the ranks of its government, the Palestinian Authority, has resulted in very poor infrastructure conditions across electricity, water, sewage and roads. Instead of taking care of their people, the Palestinian Authority leadership is taking care of themselves. According to a public opinion poll published by the Palestinian corruption monitor Aman Coalition on January 2019, 91% of Palestinians surveyed said they do not trust the Palestinian Authority.

One example of this corruption is the use of the Palestine’s Ministry of Transportation budget, which funnels funds to the 200 employees of the PA-owned Palestinian Airlines, despite the lack of an existing airport in the Palestinian territories. Another example is the use of international aid money by Abbas and his family members for private expenses instead of for the betterment of Palestinian lives.

Numerous reports published by human rights organizations claim that the PA has repeatedly violated Palestinian human rights, among the claims: torturing those who have cooperated with Israel, random arrests without a fair trial and restricting the freedom of press and human rights organization activities.

By inciting terror, the PA continues to prove it is not interested in peace with Israel. The money that is supposed to make the lives of the Palestinians better is being used for salaries paid by the PA to Palestinian terrorists who carry out terror attacks against Israelis. In March 2019, the Palestinian Authority decided to penalize civil servants, 40% of which earn less than $600/month, to avoid cutting salaries of Palestinian terrorists and their families. A Palestinians terrorist who has been sentenced for a 3-5 years period in an Israeli prison, earns a higher salary ($600) than 40% of the PA’s law-abiding public employees. If a Palestinian terrorist was sentenced for 20-35 years in prison, his monthly salary would be $3,000. In the case that he is married with children and is an Israeli resident, he will earn an extra $300/month.

Therefore, it financially makes sense for Palestinians to carry out terror attacks, especially when a violent ideology has been indoctrinated into your value system from a very young age. According to a report by IMPACT-se, a non-profit organization that monitors the content of school textbooks, much of the Jewish and Israeli history was omitted from Palestinian school textbooks, including peace processes between Israel and Arab countries (like the peace agreement between Israel and Jordan that was signed in 1994) and the Jewish presence in Jerusalem before 1948. Further to this, the word “Israel” does not even appear on their maps. The report also found radical content in hundreds of textbooks, many of which encouraged jihad, demonization and incitement against Israel and the Jewish people. All of these have been methodologically included in the curriculum across many fields of study, such as Math, Biology and Physics.

From IMPACT-se’s reports: incitement for violence in Palestinian school textbooks.

An Obstacle for Peace?

The West Bank is of an overwhelming strategic importance. The size of its area is about 6,000 square kilometers and takes up much of Israel’s width at the center of the country. It is elevated terrain that dominates Israel’s coastal plains directly below it, and this coastal plain is the narrow strip of land (only 15 kilometers wide at points) that contains over 70% of Israel’s population and economic infrastructure. Even with the crudest of homemade missiles, anyone who controls the West Bank can easily shell any point in the coastal plain, from the cafes of Tel Aviv to the runways of Ben-Gurion International Airport.

In short, whoever controls the West Bank, controls Israel.

The West Bank. Separated only 15km from Tel-Aviv. (click to enlarge)

Despite the security risks, Israel has shown more than once that it was willing to negotiate and evacuate Israeli settlements for the opportunity of peace with its neighbors. In 1979, Israeli Prime Minister Menachem Begin signed the Egypt–Israel Peace Treaty with Egyptian President, Anwar Sadat. As part of that treaty, all Israeli settlements in and around the city of Rafah were evacuated. In 2000, as part of the Camp David Summit, Israeli Prime Minister Ehud Barak offered Palestinian Authority chairman Yasser Arafat 90% of the West Bank and 100% of the Gaza Strip (among other territories) in exchange for peace. His offer was rejected without any counteroffer from Arafat.

Again in 2005, Israeli Prime Minister Arik Sharon decided to unilaterally withdraw from the Gaza Strip, effectively ending any Israeli presence there. About 10,000 Israeli settlers living in 20 settlements in Gaza were evacuated, a step that triggered a huge controversy in the Israeli public and cost the Israeli government $3 billion. He assumed it would bring about peace with the Palestinians that lived there. Not only that did not happen – things got even worse when the terrorist organization Hamas violently took over the Gaza Strip in 2007.

In 2008, Israeli Prime Minister Ehud Olmert offered Palestinian Authority chairman Mahmoud Abbas all of the West Bank and Gaza (among other territories) in exchange for peace. His offer was, again, rejected.

So are Israeli settlements an obstacle for peace? Most certainly not.

Israel has a moral and a legal right to settle and control the West Bank. In the same right, Palestinians deserve to live their lives there peacefully with no restrictions, so long as they renounce terrorism towards Jews and the State of Israel.

History and statistical data show us that the measures used to separate the two populations work and save lives. Until this undesirable situation is diplomatically resolved, there is only so much Israel can do to minimize the negative effects of those measures on the innocent Palestinian civilians that do not wish to follow the path of terror. Israel’s top legitimate priority is to protect its own. The deaths of Israelis caused by terror are permanent and irreversible whereas the hardships faced by the Palestinians are can be mitigated and reversed.

So long as the PA leadership remains corrupt and unwilling to negotiate peace and Palestinian media, mosques and schools continue to promote Israel as the manifest of evil, one generation of Palestinian terrorists will follow another, determining the lives of its own people in the process.

About the Author
Elad Tzemach was born and raised in Israel and served in the IDF from 2009 to 2013 in a Ground Forces Training unit. In 2013 he relocated to Ottawa where he obtained a BSc. with Specialization in Computer Science from the University of Ottawa. He currently lives in Toronto, working in the tech industry.
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