If international legitimacy
for the settlement enterprise were a horse, one could say that it's been
long out of the barn. Those roaming the halls of power worldwide --
from the White House in the era of Barack Obama and John Kerry to the
United Nations -- have for years regarded the territories of Judea and
Samaria as Palestinian territory that is currently under occupation.
The hostile attitude toward the settlement
enterprise is a natural, direct derivative of this premise. If we were
to make a gross generalization, the world has adopted the Palestinian
narrative as it relates to the legal status of the territories. Even
those who negotiate on behalf of the State of Israel, men and women who
officially adhere to the party line that Judea and Samaria, the cradle
of Jewish civilization and peoplehood, is not occupied territory, have
long ceased to make this statement publicly, just as they haven't even
bothered to make use of a long list of legal and historical arguments
that support this position.
While it may seem that this train has long
left the station, we were surprised to suddenly learn that for months
now a counterattack has been waged over "the historical, legal truth."
This is a campaign that is being waged by hundreds of jurists from
Israel and abroad who aren't making do with the usual "rights of our
forefathers" or "Zionism" rejoinders which are now devoid of currency in
the international arena and the High Court of Justice.
Last summer, right-wing organizations and
settlers managed to bring together a number of highly regarded legal
minds -- including those who are not traditionally aligned with
right-wing politics. These individuals set out on a mission to change
the terminology and the legal discourse that the left, including groups
like Peace Now, has assumed control of for quite some time.
The battle over the narrative
The so-called "new" jurists are really just
dusting off old arguments that were first made and eventually accepted
in the initial years following the Six-Day War. This new line of
discourse categorically rejects the premise of "occupied territories."
The State of Israel did indeed conquer Judea and Samaria in 1967 as the
result of a war of self-defense, but from a legal standpoint these
territories are not occupied since the foreign power that held these
territories between 1948 and 1967 -- Jordan -- did so illegally.
These jurists note that with the exception of
Britain and Pakistan, the international community refused to recognize
the Jordanian annexation of the West Bank. Therefore, the legal status
of these territories is in dispute. From the standpoint of international
law, there is an enormous difference between occupied territories and
Those who bolster this argument -- and some
jurists do indeed do this -- with what is referred to as "the historic
right of the Jewish people to sovereignty over the Land of Israel" add
another legal statement in support of their case: "Demanding the right
to this sovereignty, which supersedes any counter-demand by the
Jurists like Professor Talia Einhorn or
Professor Eliav Shochetman, who are two of the more active legal experts
in the group, note that this right was recognized by the international
community from the time of the British Mandate for Palestine. This legal
document granted national rights solely to the Jewish people, which
were in turn reaffirmed in Article 80 of the United Nations Charter.
"As such, when the U.N. secretary-general
states that 'the settlements are illegal and are an obstacle to peace,'
or when [Palestinian Authority President] Mahmoud Abbas demands that
Israel 'dismantle the settlements built on Palestinian land since 1967,
since their very establishment is illegal,' and when even the U.S.
Secretary of State, John Kerry, refers to the settlements as
'illegitimate' -- all of them are basing their statements on errant
legal assumptions from a factual standpoint," said Dr. Hagai Winitzki of
Sha'arei Mishpat College.
A legal case
The renaissance that the "new jurists" are
trying to infuse into the discourse to make an Israeli case for Judea
and Samaria has for years been proudly trumpeted by the Foreign Ministry
on its web site. It has even been articulated into a codified doctrine
by the former president of the Supreme Court, Meir Shamgar. This case
rested on a number of international resolutions and historical facts
that were almost wiped clean from the public record but in recent years
have been resurrected by a number of organizations.
Two of these groups, which began work just
recently, are drawing the most attention. First, there's the Regavim
Institute's Center for Zionism, Justice, and Society. For years, Regavim
has provided assistance in court cases which hear petitions brought on
by left-wing groups against settlements in Judea and Samaria. It even
shocked the judicial system when it brought its own petition against
"Palestinian outposts" in an attempt to defend Jewish settlement in
The other organization is the Legal Forum for
the Land of Israel, which was originally founded as a group dedicated to
pursuing legal means to defeat the disengagement plan.
The inaugural convention held by the Center
for Zionism took place a few weeks ago at the Mishkenot Sha'ananim event
hall in Jerusalem. The occasion also featured the unveiling of an
impressive new book that delves into property laws and international law
in Judea and Samaria. The book is 560 pages long, and it includes a
number of articles by renowned legal scholars like Prof. Haim Sandberg
and Prof. Einhorn.
One of the most noteworthy articles that
appeared in the book was written by Col. (res.) Daniel Reisner, an
expert in international law and the former head of the international law
department in the Military Advocate General's Corps. Today, Reisner is a
partner in the Herzog Fox Neeman law firm.
Reisner's position is interesting not just
because of his professional background, but also because he is a jurist
who is not aligned with the political right and who recognizes that the
Palestinians also have claims to Judea and Samaria.
In his article, Reisner expresses
understanding for Israel's formal position "because since the
territories of Judea and Samaria were never a legitimate part of any
Arab state, including the Kingdom of Jordan, it is impossible to
determine that Israel is an occupier in Judea and Samaria in the
accepted legal definition. What's more is that the Jewish people have a
historic, legal, and physical link to Judea and Samaria."
Reisner is a senior jurist who took part in
all of the major diplomatic negotiations since the Oslo Accords. Today
he serves as an advisor to Israel's peace negotiators. He believes that
the position taken by most experts who are well-versed in international
law against Israel's claims does not stem from the weakness of Israel's
legal arguments, but rather is the result of the fact that most of the
countries of the world have adopted the Palestinian narrative which
holds that the territories of Judea and Samaria belong to the
"Even if it seems that the battle is lost,
that doesn't mean it's a reason to give up on a real, genuine legal
argument," he said. "Israel didn't conquer these territories from any
state because Jordanian control of the West Bank was illegal. If Israeli
control over Rachel's Tomb in Bethlehem in 1967 was illegal because of
the illegality of taking over a territory by force, then the Jordanian
occupation of that same complex in 1948 suffers from exactly the same
"Conversely, if one claims that the Jordanian
occupation of 1948 was legitimate because before that the territory
wasn't under the sovereignty of another state, then that just
strengthens a similar Israeli argument," he said.
From Jerusalem to Al-Khader
Reisner recommends that we do not take the simplistic approach of treating Judea and Samaria as a single, solitary entity.
"There is no uniform law that applies equally
to Ramallah -- where there was never a Jewish presence -- and Hebron --
where a constant Jewish presence spanning hundreds of years was cut
short by a horrific massacre," he said. "There is no uniform law that
applies equally to Al-Khader, which was and remains an exclusively Arab
village, and the settlements of nearby Gush Etzion, which like Rachel's
Tomb was in sole Jewish control before the War of Independence. And of
course there is no uniform law that applies equally to the Old City of
Jerusalem, the historic site of two Jewish temples, and the neighborhood
of Abu Dis nearby."
In addition, Reisner finds legal backing for
distinguishing between territories and specific sites in Judea and
Samaria. Such language can be found in U.N. Security Council Resolution
242. The wording of the resolution calls for "withdrawal of Israeli
armed forces from territories conquered" in the Six-Day War. It doesn't
call for withdrawal from "the" territories.
"This shows that there really isn't an
insistence on all of the territories that were captured during the war,"
Reisner said. "In any event, despite what the world thinks about us, it
is impossible to peg us as foreign occupiers that are without any
rights to these regions, and whoever ignores this part of the story is
simply deviating from the truth."
Is this argument, as factually correct as it
may be, even relevant now, with the world and even the State of Israel
talking in a different language? Isn't it too late?
Reisner: "The conflict has a political
dimension and a legal one. Nonetheless, the solution to the conflict
won't necessarily be found in either of these two dimensions, but in my
opinion it will rather be based on something totally different -- a fair
compromise that will create a stable reality over time. The odds of one
party to the conflict managing to convince the other to accept
competing legal and political positions are nil."
Still, Reisner is convinced that "Israel needs
to make its case cogently from a legal, political, and historic
standpoint simply because it has its own truth that is backed up by
"Will the solution be based on this truth? Is this truth relevant to the results of the negotiations? I'm not entirely certain."
If there is a legal case to be made, why don't the state's negotiators use it in the talks?
"Because inside the negotiating room it's
almost irrelevant. International law has a relatively marginal role to
play in Israeli-Palestinian agreements. The bottom line is the one that
both sides need to live with. Legal arguments help you. They give you an
internal anchor, but in negotiations it is almost never a winning
argument. In any event, a legal claim is never weakened or nullified
because it is up to people to either make the claim or not make the
claim. If you have a truth and you believe in it, speak up!"
Do the political opinions of jurists who are
participating in the negotiations or the opinions of prosecutors have an
effect on their legal positions?
Reisner: "I don't know."
Alan Baker, an attorney and a member of the
Levy Committee which was formed in 2012 to investigate the legal status
of the outposts and the settlements and which came to the conclusion
that Judea and Samaria are not occupied territories, echoes much of what
Reisner has to say.
Baker, a former legal advisor in the Foreign
Ministry who also served as ambassador to Canada, heads a newly formed
group of experts in international law which has already written to Kerry
and EU foreign policy chief Catherine Ashton in protest of their
"mistaken and misleading" positions.
Two weeks ago, Baker was in Paris, where he
met with dozens of other senior jurists from across Europe who share
similar views. The group includes Yaakov Neeman, the former Israeli
justice minister; Baroness Ruth Deech, a member of the British House of
Lords and a professor of law at Oxford; and Meir Rosenne, the former
Israeli ambassador to France and the U.S.
"The Israeli government for years has
refrained from waging a hasbara campaign based on advancing our rights,"
Baker said. "Instead, it has waged a hasbara campaign based on
apologies. The right thing to do was to operate out of a sense of
advancing our rights, the rights of the Jewish people as an indigenous
nation in its land. The Jews are the oldest nation here, but the State
of Israel rarely mentioned this. It has rarely mentioned the fact that
these are territories where we have had rights from time immemorial. It
has rarely mentioned international documents like the Balfour
Declaration, the San Remo Declaration, the U.N. Charter, and the British
Mandate as approved by the League of Nations, all of which are very
relevant as they relate to our rights here."
"Most importantly, it has refrained from emphasizing that what we are dealing with is not occupation," he said.
You're "talking history." Who even takes that into account these days?
Baker: "If we refer to it, others will refer to it. It's a process that takes time."
Even the State Attorney's Office is completely
disconnected from this approach whenever it argues the state's position
to the High Court of Justice.
Baker: "There's a problem with the State
Attorney's Office. There is a group of people there that have a very
one-dimensional approach when it comes to the status of the territories
But they are supposed to be the mouthpiece of the state.
Baker: "Not exactly. The mouthpiece of the
state is the Foreign Ministry and the Prime Minister's Office. Those
people implement the law. That's their job. They're not charged with
waging hasbara campaigns or making policy. We agreed with the
Palestinians that the fate of the territories will be determined in
negotiations between us, so in the context of a permanent status deal
with the Palestinians, we will have to compromise. But on the way to the
compromise, for it to be better for us and for us to know that we did
all we could, there is something called 'rights,' and we need to speak
up about it."
"It is inconceivable that the entire world
will repeat the mantra about Judea and Samaria being occupied territory
when from a factual standpoint there is no legal basis for this," he
said. "When Kerry claims, even before the negotiations ended, that we
have no rights in territories over which negotiations are being held and
where settlements are illegitimate, he is in essence adopting the
Palestinian position and harming the negotiations. If the negotiations
are intended to determine the fate of the settlements, then by all
means. Even if you are the secretary of state, don't prejudice the
negotiations by stating beforehand that they are illegitimate."
Bezalel Smotritz, a senior figure at Regavim,
said that while his organization adopted the
"offense-is-the-best-defense" approach in its arguments before the High
Court of Justice, he and his friends realized that they were busy
"putting out fires."
"The settlement enterprise in Judea and
Samaria exists today within the bounds of an untenable legal situation
which is the byproduct of the judicial delegitimization that has been
waged for years by the left against Judea and Samaria and the
settlements there," he said. "These bounds toe the line between
'illegitimate' and 'war crime.' One should add that the law that is
applied today to the settlement enterprise is outdated and unsuitable
for normalized living in Judea and Samaria. We are talking about the
remnants of Ottoman law, British Mandatory law, Jordanian law, and
Israeli defense edicts. All of this requires that we change the ongoing
"If we seriously want to deal with the justice
system as it relates to the settlements, there is no alternative but to
equip ourselves with a legal bulldozer and break through," he said. "We
need to establish an entirely different legal foundation which will
enable the settlement enterprise to breathe and combat the legal
delegitimization, and to convince the public that settlements are
"The new book that our center published, which is already making
waves throughout the halls of power, is just the tip of the iceberg," he
said. "There will be more books, conferences, academic courses,
scholarships, and more. One can say, 'It's too late,' and throw up his
hands in despair and go home, like [what we've done] in the Negev. I'm
not ready to give up, not on the Negev and not on Judea and Samaria. For
years, a certain legal school has been in charge, and many academics
and jurists were afraid to speak up. Now they are not alone."