Friday, August 19, 2016

Jewish settlements are legal ‎- Yoram Ettinger

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


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