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.
Yoram Ettinger
Source: http://www.israelhayom.com/site/newsletter_opinion.php?id=16967
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