The Inalienable Right of Jews to West Bank Lands

The Tomb of the Patriarchs in Hebron, The second holiest site in Judaism, the only Herodian structure still intact, and the site where most of our founding fathers and mothers are buried. We are only allowed there due to the presence of Jewish "settlers" living in mostly historic Jewish properties in the city.
The Tomb of the Patriarchs in Hebron, the second holiest site in Judaism, the only Herodian structure still intact, and the site where most of our founding fathers and mothers are buried. We are only allowed there due to the presence of Jewish "settlers" living in mostly historic Jewish properties in the city.

I am writing this from the Jewish Quarter of Hebron. It is Parashat Chai Sarah and as is now a custom, tens of thousands of Jewish Israelis descend on Hebron to mark the anniversary of the purchase of the Cave of the Patriarchs by Abraham. The property, the oldest Jewish piece of real estate in the world, is also the only Herodian structure still standing. Some people also come to ask for a shidduch or match for marriage as this is also the anniversary of Isaac being matched to Rebecca through Eliezer, Abrahams servant.

Needless to say this is not simply a Torah lesson but one in Politics and International Law.

Hebron, central to Jewish heritage, is located in the Southern West Bank. Its Jewish residents are called “settlers” despite a near continuous historical connection to the city stretching back thousands of years.

I am in the heart of the Southern West Bank, a place called “Judea”, where the word Jew originates. It is here that a small Jewish community of 1000, with an additional 1000 yeshiva students guard what is some of the oldest Israelite structures in the world. The world calls them settlers and occupiers, but despite a lull following the 1929 massacre of 67 Hebron Jews, there have always been Jews here. In fact, they predate the Arabs that came here in the 7th century.

Is it wrong to occupy our own Heritage?

This last week Mike Pompeo, United States Secretary of State, declared that Israeli settlements are not illegal under International Law. He is basing it on an opinion by former President Ronald Regan and also based on Israeli court opinions. It will not be based on the final status of the lands but rather on peace negotiations. Last, and most importantly, “the conclusion that we will no longer recognize Israeli settlements as per se inconsistent with international law is based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank. Our decision today does not prejudice or decide legal conclusions regarding situations in any other parts of the world.”

Most of the world was quick to condemn the United States; nevertheless, the statement emphasizes an important reality.

Are we foreign occupiers?

The Bible states not only a quasi historical claim for the land but a clear religious one. Nevertheless, putting the world’s most famous historical and religious document aside, there is ample historical evidence of Jews and their ancestors living in the lands of the West Bank (also called Judea and Samaria, the area’s historical name) throughout the ages. There were active Jewish communities in East Jerusalem, Hebron, Nablus, and Jericho until the 20th century. Most of our holiest sites are over the green line, the boundary that separates Israel from the West Bank. The names of the very cities also reflect a Hebrew root. Hebron comes from the Hebrew word for friend, Bethlehem is a house of bread, Nablus is Sechem in Hebrew an ancient capital city. Others such as Battir and Halhul also have Hebrew roots. Every year additional artifacts, such as an ancient Israelite alter was found in Shiloh, our capital during the Book of Judges.

Beyond this, there is strong legal claim for Jews to live in the West Bank.

The Balfour declaration states:

His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object…

With the East Bank of the Jordan river given to the Hashemite dynasty in 1921, this applied to all the land West of the Jordan river including what is today the West Bank (which ironically is named after this).

The League of Nations Palestine mandate also clearly mentioned the connection the Jewish people have to all the land including that of the West Bank and the need to settle Jews in their historical lands (1922):

Preamble: Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;

Article 2
The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.

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.

While the UN partition plan of 1947 divided the land between a Jewish and Arab state nothing was said about civilian habitation.

As such, the Jewish people have legal backing to settle land west of the Jordan river.

Article 49 of the Geneva Conventions states:

The occupying power shall not deport or transfer parts of its own civilian population to territory it occupies.

While Protocol One elaborates on this, Israel never ratified it and as such it does not apply. Other provisions such as from the Rome Statute of the ICC likewise do not apply since Israel never ratified the treaty.

Several UN Security Council resolutions including 242 call for Israel to withdraw from territories it occupied in 1967 but says nothing about civilian populations. Resolutions 460 (1980) and others including 2334 (2006) clearly state them as violations of International Law but with no coercive measures. Every year the General assembly passes resolutions condemning Israeli settlements.

The United Nations Security Council passed the resolutions with no regard for the Jewish peoples historical claim and as such an indigenous land claim argument can be said on behalf of the Jewish people. The United Nations Declaration on the Rights of Indigenous People states:

Preamble:
Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,

Article 10: Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Some will claim that it was the Romans that dispersed us and as such we lost our land claim from millenia ago. Nevertheless, there have always been Jews living in the West Bank. To disregard our unique culture and heritage is a violation of international legal norms.

In addition, International Law has a concept called a persistent objector… a state which constantly and clearly objects to an international legal norm. One can claim that Israel,through constant statements from the onset has always objected to the illegality claim of most of the international community. Now, with the backing of the Unites States, that objection has added clout or backing.

The Jewish people never rescinded its claim to the West Bank, a claim that transcends the Arab claim from the 7th century. Religious, cultural, and historical ties bind the Jews to the West Bank.

As such are we foreign occupiers? What are we occupying?

However there is another people living in the West Bank: the Palestinian Arabs. There are over two million of them and a complete aquisition or annexation of the West Bank would mean incorporating all of them into the Jewish state, threatening the creation of a binational state.
They also have cultural ties dating back 1300 years which cannot be dismissed.

As such, Jewish habitation of the West Bank should be separated from the current notion of state, which is mostly political. Regardless of what political solution eventually falls over the West Bank the Jewish claims there must be respected and Jews must be allowed to continue living and worshipping there.

This is the true meaning of Pompeo’s statement.

As many have stated, only Messiah can truly resolve Israel’s problems including that of its final borders. This may be one such problem. Regardless, the Jewish claim, one of 3300 years continues, and is not likely to ever be repudiated.

About the Author
Born in Israel but raised in Canada, Gil Lewinsky worked as a journalist in Jewish newspapers including the Jerusalem Post after completing a Masters degree at the Munk School of Global Affairs from the University of Toronto. He also has a LLM in International Law from Lancaster University in the UK. His past topics include a book written about the Status of Gaza under International Law soon after its conquest by Hamas in 2007. He is perhaps best known as one of two people that brought a flock of Jacob Sheep from Canada to Israel in 2016, making history. He currently works as a teacher and public relations professional in Israel.
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