Judea and Samaria- Part 5: An Illegal Occupation or a Land Dispute?

In parts 1-4 I discussed Israel’s historical and religious connections to Judea and Samaria as well as security concerns which make Judea and Samaria strategically important to Israel’s continued existence. But all of that is irrelevant, you may claim, if Israel is illegally occupying these territories.

The prevalent view in the international community is that Israel illegally occupied Judea and Samaria, taking it away from the Palestinians during the 1967 Six Day War. This view draws support from a report written by Talya Sasson, a member of the extreme-Left party Meretz, written for PM Ariel Sharon in 2004, regarding the legal status of settlements in Judea and Samaria. Until recently, the Talya Sasson report was the only formal Israeli document expressing a legal opinion on the status of settlements in Judea and Samaria.

But there is another view, which I will discuss in this post and it is vitally important for Israel’s case. In 2012, PM Benjamin Netanyahu appointed a committee, headed by deputy chief justice, Edmund Levi, in order to investigate the legal status of settlements in Judea and Samaria and whether it is possible for settlements which are considered illegal to become legal. The other members of the committee were former Tel-Aviv district court judge Tchiya Shapira and former Israeli ambassador to Canada, Dr. Allen Baker. The committee handed in its report in 2012.

The report is 90 pages long and it opens with a discussion of the relevance of the question at hand: If Israel’s presence in Judea and Samaria is an illegal occupation, the question of the legal status of settlements in these territories is moot. But if that were the case, I wouldn’t be writing this post.

The Levi report discusses the international laws set forth in the Fourth Geneva Convention, Article 49, regarding the administration of civilian population in territories occupied during an armed conflict between two countries, in the period of time until the occupation ends or any other arrangement is reached.

However, Judea and Samaria were not taken from a country with a legitimate claim over them. They were taken from Jordan, an occupying power itself, which has since removed its own claim to these territories. Jordan occupied Judea and Samaria during Israel’s war of independence in 1948. Before that, the sovereign power there was Great Britain. The land had been offered to the Arabs living in the mandate of Palestine, as part of the UN Partition Plan, but the plan was never accepted by the Arabs, and therefore has no legal standing. Israel has its own legitimate claim to Judea and Samaria.

Section 49(6) of the Fourth Geneva convention states that:

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

The Levi report quotes the International Committee of the Red Cross’s interpretation of this (the ICRC is responsible for the implementation of the convention):

It is intended to prevent a practice adopted during the Second World War by certain powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

Prof. Eugene Rostow discusses the example of Judea and Samaria in the American Journal of International Law, vol. 84, 1990, p. 719:

The convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example… The Jewish settlers in the West Bank are most emphatically volunteers. They have not been “deported” or “transferred” to the area by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.

Prof. Julius Stone writes (as quoted in the Levi report):

Irony would… be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that… the West Bank… must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6).

The Levi committee adopts the Rostow’s and Stone’s interpretation of Article 49(6).

The report then goes on to outline the legal history of the sovereignty over Judea and Samaria in order to prove that it is not, in fact, occupied land, and therefore regardless of what interpretation we accept of Article 49(6) of the Fourth Geneva Convention, the Article has no bearing on the Jewish settlements in Judea and Samaria:

Step 1- The Balfour Declaration:

On November 2nd, 1917, Lord James Balfour, the British Foreign Secretary, published a declaration in a letter sent to Lord Rothschild:

His Majesty’s Government view with favor 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, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

Lord Balfour. Photo: Public Domain.

Lord Balfour. Photo: Public Domain.

The same commitment was expressed in the declaration of the San-Remo peace conference at the end of WWI, reinforcing the Balfour declaration:

The principal Allied powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the government of his Britannic Majesty, and adopted by the said powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country…

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”

The Levi report stresses that the San Remo declaration recognizes civil and religious rights of the non-Jewish population in Palestine, but not their national rights [My own emphasis in the text].

Step 2- the Mandate for Palestine

The Mandate for Palestine. Photo: Public Domain.

The Mandate for Palestine. Photo: Public Domain.

At the end of WWI, the lands which were formally controlled by the Ottoman Empire in the Middle East were distributed between Britain and France as a “Mandate”. The Mandate for Palestine states:

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.

The mandate was accepted in August 1922 by the League of Nations, thus anchoring the rights of the Jewish people to build its national home in the lands of the Mandate for Palestine, which included what is today Israel, the West Bank (Judea and Samaria) and Jordan.

Map of the Mandate for Palestine- includes "Palestine" and "Trans-Jordan". Photo: BBC.co.uk

Map of the Mandate for Palestine- includes “Palestine” and “Trans-Jordan”. Photo: BBC.co.uk

Step 3- Partition:

In November 1947, the UN voted to accept a plan, laid out by its own committee to partition the land west of the Jordan River (What is now Israel, the West Bank and Gaza; the lands east of the Jordan were given to the country of Trans-Jordan in 1923) into two countries, a Jewish country and an Arab country. This plan was never carried out and therefore never took hold in international law, because the Arab countries rejected the partition plan and declared war in order to prevent it. The result of this war is that in the lands held by the Jews, a Jewish state was formed, Israel, while the lands captured by Jordan (Judea and Samaria) and Egypt (Gaza) were controlled by them.

The Partition Plan, which was never carried out. Photo: screenshot, youtube, Danny Ayalon

The Partition Plan, which was never carried out. Photo: screenshot, youtube, Danny Ayalon

The armistice agreement between Israel and Jordan from 1949 clearly states that the armistice lines (also known as The GREEN LINE) shall in no way be considered to be the recognized international border between the countries.  Jordan annexed Judea and Samaria in April 1950. The annexation of Judea and Samaria by Jordan was never accepted as legal. Israel captured Judea and Samaria in a defensive war in 1967 (the Six Day War) and in 1988 Jordan relinquished its claim to the area.

Therefore, the status of Judea and Samaria returned to its previous status, i.e. as land on which the Jewish people may reconstitute their national home, according to the Balfour declaration, the resolution made by the League of Nations and the Mandate.

Israel never saw itself as an occupying force in Judea and Samaria and therefore was not required to fulfill Article 49(6) of the Fourth Geneva Convention. Israel, however, never formally annexed Judea and Samaria for political reasons, in order to allow future negotiations to settle the status of the lands.

Israel allowed Jews to settle freely within Judea and Samaria and therefore, even if Article 49(6) was relevant, it was not broken. The Levi report concludes, therefore, that the Israeli settlements in Judea and Samaria are in accordance with international law.

In the next 77 pages, the Levi report then goes on to discuss the various questions of jurisdiction, procedure, land ownership, documentation of land ownership (which is almost non-existent and therefore leads to many cases of Palestinians making false claims of land theft), and questions such as whether adding new neighborhoods to existing settlements constitutes new settlements. All of these issues are important but are irrelevant to the subject of this post, which is the legal status of Israel’s presence in Judea and Samaria. A full English translation of the first section of the report (which I have outlined above) and the recommendations (as published by the committee) exists in The Elder of Zion blog. The complete text is available online, but only in Hebrew. It can be found here (PDF).

It is important to point out that the nationality name, “Palestinian” is derived from the name of the land, “Palestine” (a name given to the region by the Roman Empire, more than 2000 years ago) and not vice versa. The grandparents of the people who are today called “Palestinian” were simply called “Arab” until 1948. The “Palestinian” national identity was conjured up in order to differentiate between Arabs living in other countries who had already fulfilled their aspirations for national independence and Arabs living in the lands west of the Jordan, who had not achieved national independence. This was in order to build a competing claim to Israel’s claim to the land. If “Arabs” were to present claims to the land, they could be easily dismissed, because the Arab nation already has many countries of its own. The “Palestinian” nation, however, has none, or one, if we consider that Jordan is just as Palestinian as Israel, Judea and Samaria are, being part of what was once the British Mandate for Palestine.

The question of whether a national identity which was forged only after 1948 is a “valid” national identity is an important one. What constitutes a “valid” nationality? Is any group which feels it has its own national identity entitled to its own country? A well-known verse from an Israeli song says:

A man suddenly wakes up one morning

he feels that he is a nation

and starts walking.

This is an important philosophical question, which I shall not go into in this post, because the issue of this post is only the legal status of Judea and Samaria.

To sum things up so far:

  1. In 1917, the Balfour declaration promised the Jewish people a national home in Palestine. This promise was repeated in the San Remo conference of 1920. Both declarations provided civil and religious rights to the non-Jewish population of Palestine.
  2. In 1921, the League of Nations approved the British Mandate for Palestine, with the aim of forming a Jewish homeland in the land which then included all of today’s Israel, West Bank and Gaza. The land east of the Jordan was given to the kingdom of Trans-Jordan.
  3. In 1947, the UN proposed partitioning the land west of the Jordan into a Jewish state and an Arab state. The Arabs refused the partition plan and declared war in order to prevent it.
  4. At the end of the war, the armistice lines between Jordan and Israel were dubbed the “Green Line”, and were considered to be temporary borders and in no way legally binding. Jordan annexed the lands it had captured west of the Jordan (Judea and Samaria) in 1950, although the annexation was never recognized as legal.
  5. After Jordan relinquished its claim to Judea and Samaria, the land went back to its previous status, i.e. as earmarked for a Jewish homeland.
  6. Therefore, Israel’s presence in Judea and Samaria (the West Bank) is not an illegal occupation.
  7. Even if it were an illegal occupation, Article 49(6) of the Fourth Geneva Convention would not apply, because Israel’s settlements were not built through the forced transfer of populations, but rather by Jews voluntarily moving into Judea and Samaria.

The Palestinians are demanding that negotiations be held on the basis of Israeli withdrawal to the “1967 borders”, in other words, a full retreat of Israel to the “Green Line”, which as I have shown above, is not a border at all, but rather a temporary armistice line from 1949 between Israel and Jordan which, in fact, ceased to exist in 1967. They state that Israel’s presence in Judea and Samaria/ the West Bank constitutes an illegal occupation, and that therefore Israel must withdraw.

The Israeli Left largely ignores the fact that the term “occupation” refers to land, rather than to people, and stresses that we have no interest in controlling the Palestinian population or in keeping them “under occupation”. They maintain that if we continue controlling the Palestinian population, we must either give them full citizen rights, which would endanger the Jewish majority in Israel, thereby cancelling the “Jewish homeland”, or become an apartheid state. They also take for granted that if in a final peace agreement with the Palestinians Israel retains control over parts of Judea and Samaria (“settlement blocs”), Israel will be obligated to hand over other pieces of land equal in size. Spoiler alert: I find that this dichotomist view ignores the fact that the Palestinians already have full civil and religious rights under the Palestinian Authority and avoids thinking “out of the box” for creative solutions.  But that’s a discussion for Part 6 or 7.

The Israeli Right maintains that Israel cannot be an occupying force in its own homeland. Therefore, and based on the arguments laid out in this post, Judea and Samaria are not occupied land, but rather disputed land. Disputes must be solved through negotiations and the Palestinian demand to begin the negotiations only after Israel has agreed to a full withdrawal is absurd.

***

I have shown now that Israel has an historic connection with Judea and Samaria (Part 2). The Jewish people lived there in the time of the Bible, long before anyone had even heard of Palestinians or even Arabs. The Jewish people have a religious connection to Judea and Samaria (Part 3). The Jewish holy sites are all situated in Judea and Samaria. Israel’s security needs require control over Judea and Samaria (Part 4). And finally, Israel has a strong legal basis on which to base its claim to Judea and Samaria.

All of this is important to the discussion, but still does not answer the question of the Palestinian’s rights or how Israel can achieve peace. I will discuss the Palestinians’ intentions and rights as well as the prospect of peace in posts 6 and 7.

***

Further information:

For a short (6 minutes) video recap of the main points made in this post by Israel’s previous deputy Foreign Minister, Danny Ayalon, click here.

For a slightly longer (45 minutes) video of a lecture on the subject by Professor Eugene Kontorovich to Yeshiva students, click here.

This article from NRG (the website of Israeli newspaper Maariv), discusses Professor Eugene Kontorovich’s findings of a double standard by the international community when regarding “settlements”. While the international community demands that Israel uproot settlers living in disputed lands, settlers in other land disputes and even in occupations are required to do no such thing. The article is in Hebrew and can be found here. If I have time, I’ll translate it later. Until that happens, non-Hebrew readers can try running it through Google Translate and see what happens (I just tried it and the result is almost tolerable. You’ll be able to get the general idea).

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3 comments

  1. […] is no occupation. Hopefully I’ll finish the other two soon. Links here, here, here, here and here]. On the Right, talk of our “Historic rights and roots” in Judea and Samaria has been […]

  2. […] is no occupation. Hopefully I’ll finish the other two soon. Links here, here, here, here and here]. On the Right, talk of our “Historic rights and roots” in Judea and Samaria has been […]

  3. What the intention was at San Remo was that the Jewish People were to be recognized as owning the collective political rights to self-determination including the right to settle immediately and the right to rule following the Jewish People’s attainment of a population majority and the capability of exercising sovereignty. A part of the territory vested in 1948 and the remainder in 1967.

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