by Yoram Ettinger
According to Article 80 of the U.N. Charter, and the Mandate for Palestine, the 1967 war of self-defense returned Jerusalem and Judea and Samaria to its legal owner, the Jewish state
The misperceptions, misrepresentations and ignorance over the legal status of Jewish settlements in the disputed area of Judea and Samaria reflect the general attitude toward the unique phenomenon of the reconstruction of the Jewish national home in Israel.
"Fidelity to law is the essence of peace," opined Professor Eugene Rostow, a former dean of the Yale University Law School, undersecretary of state and a co-author of the Nov. 22, 1967, U.N. Security Council Resolution 242. Rostow resolved that under international law, "Jews have the same right to settle in the West Bank as they have in Haifa."
Rostow determined that according to Resolution 242, "Israel is required to withdraw 'from territories,' not 'the' territories, nor from 'all' the territories, but 'some' of the territories, which included the West Bank, East Jerusalem, the Gaza Strip, the Sinai Desert and the Golan Heights."
Moreover, "resolutions calling for withdrawal from 'all' the territories were defeated in the Security Council and the General Assembly. ... Israel was not to be forced back to the 'fragile and vulnerable' [9- to 15-mile wide] lines ... but to 'secure and recognized' boundaries, agreed to by the parties. ... In making peace with Egypt in 1979, Israel withdrew from the entire Sinai ... [which amounts to] more than 90% of the territories occupied in 1967."
Former International Court of Justice President Judge Stephen M. Schwebel stated: "[The 1967] Israeli conquest of territory was defensive rather than aggressive ... [as] indicated by Egypt's prior closure of the Straits of Tiran, blockade of the Israeli port of Eilat, and the amassing of [Egyptian] troops in Sinai, coupled with its ejection of the U.N. Emergency Force ... [and] Jordan's initiated hostilities against Israel. ... The 1948 Arab invasion of the nascent State of Israel further demonstrated that Egypt's seizure of the Gaza Strip, and Jordan's seizure and subsequent annexation of the West Bank and the Old city of Jerusalem, were unlawful. ... Between Israel, acting defensively in 1948 and 1967 ]according to Article 52 of the U.N. Charter[, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was [British Mandate] Palestine, including the whole of Jerusalem. ... It follows that modifications of the 1949 armistice lines among those states within former Palestinian territory are lawful."
The legal status of Judea and Samaria is embedded in the following authoritative, binding, internationally ratified treaties, which recognized that the area has been the cradle of Jewish history, culture, aspirations and religion:
1. The Nov. 2, 1917 Balfour Declaration, issued by Britain, called for "the establishment in Palestine of a national home for the Jewish people."
2. The April 24, 1920 resolution, adopted by the post-World War I San Remo Peace Conference of the Allied Powers Supreme Council, incorporated the Balfour Declaration, entrusting both sides of the Jordan River to the Mandate for Palestine: "The Mandatory will be responsible for putting into effect the [Balfour] declaration ... in favor of the establishment in Palestine of a national home for the Jewish people." It was one of over 20 mandates (trusteeships) established following World War I, responsible for most boundaries in the Middle East.
3. The Mandate for Palestine, ratified on July 24, 1922, by the Council of the League of Nations, entrusted Britain to establish a Jewish state in the entire area west of the Jordan River, as demonstrated by Article 6: "[To] encourage ... close settlement by Jews on the land, including state lands and waste lands." The mandate is dedicated exclusively to Jewish national rights.
4. The Oct. 24, 1945 Article 80 of the U.N. Charter incorporated the Mandate for Palestine into the U.N. Charter. Accordingly, the U.N. or any other entity cannot transfer Jewish rights in Palestine, including immigration and settlement, to any other party.
The Nov. 29, 1947 U.N. General Assembly Partition Resolution 181 was a nonbinding recommendation -- as are all General Assembly resolutions -- superseded by the binding Mandate for Palestine. The 1949 Armistice Agreements between Israel and its neighbors delineated the pre-1967 cease-fire -- non-ratified -- boundaries.
According to Article 80 of the U.N. Charter, and the Mandate for Palestine, the 1967 war of self-defense returned Jerusalem and Judea and Samaria to its legal owner, the Jewish state. Legally and geo-strategically the rules of "belligerent occupation" do not apply to Israel's presence in Judea and Samaria since the area is not "foreign territory" and Jordan did not have a legitimate title over the area in 1967. Also, the rules of "belligerent occupation" do not apply in view of the 1994 Israel-Jordan peace treaty.
While the 1949 Fourth Geneva Convention prohibits the forced transfer of populations to areas previously occupied by a legitimate sovereign power, Israel has not forced Jews to settle in Judea and Samaria, and Jordan was not recognized, internationally, as its legitimate sovereign power.
Furthermore, the 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Agreement do not prohibit Jewish settlements in Judea and Samaria, stipulating that the issue will be negotiated during the permanent status negotiations, enabling each party to plan, zone and build in areas under its control. If Israeli construction prejudices negotiation then Arab construction -- which is dramatically larger -- dramatically prejudices negotiation.
Finally, the term "Palestine" was a Roman attempt -- following the 135 C.E. Jewish rebellion -- to eradicate Jews and Judaism from human memory. It substituted "Israel, Judea and Samaria" with "Palaestina," a derivative of the Philistines, an archenemy of the Jewish people whose origin was not in Arabia but the Greek Aegean islands.
The campaign against legal Jewish settlements in the disputed -- rather than occupied -- area of Judea and Samaria is based on gross misrepresentations, fueling infidelity to law, which undermines the pursuit of peace.
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