ARE SETTLEMENTS REALLY ILLEGAL?
WRITTEN BY ELISA GREENBERG
THE FOURTH GENEVA CONVENTION
Reuters, BBC, and The Guardian are among a number of mainstream media outlets that often claim Israel illegally occupies Judea and Samaria (also known as the West Bank of Jordan) and illegally occupied Gaza before Israel’s 2005 unilateral withdrawal from 21 settlements (8,500 Jewish Israelis) there.
Their misrepresentation of the facts is based on the distortion of Article 49 of the Fourth Geneva Convention, which states:
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country…are prohibited…The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
By casting Israel as a colonial occupier and the Palestinian Arabs as oppressed, indigenous people, various media outlets are able to erroneously apply the above directive to Israel and claim that she is violating international law. Yet, nothing could be further from the truth.
WHEN AND WHY WAS ARTICLE 49 WRITTEN? DOES IT APPLY TO THE ARAB POPULATION IN JUDEA, SAMARIA, AND GAZA?
The article was created on August 12, 1949 in an effort to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps.
Arab residents are neither forcibly transferred nor has their growth been suppressed. in fact, their population has more than quadrupled in these territories since 1948. In fact, the Arab population in Jerusalem has increased at a faster rate than the Jewish population.
Any limitations that exist of the freedom of movement for Arabs in Gaza and Judea and Samaria such as checkpoints, the security fence, and/or security forces are direct results of the threat they pose to their Israeli neighbors and their governance by the Palestinian Authority and Hamas.
THE INTERNATIONAL COMMUNITY’S OBSESSION WITH SETTLEMENTS
In 2005, 21 Jewish settlements were uprooted from Gaza as part of a land-for-peace agreement. Not a single member of the United Nations objected to Israel’s unilateral withdrawal from Gaza and the removal of Jewish families from their homes.Recently, Israel announced the construction of 2,200 Arab homes in eastern Jerusalem. Rather than applause or condemnation regarding this construction, the international community simply ignored it. On October 1, 2014, Israel announced the construction of 2,500 Jewish and Arab homes on desolate land in Jerusalem.
Currently, less than three percent of Judea and Samaria’s population is Jewish, yet the Palestinian Authority has been successful in their efforts to vilify their Jewish neighbors for simply raising families near or in predominantly Arab communities. This comes as no surprise, since Mahmoud Abbas, the current president of the Palestinian Authority, has openly stated, “In a final resolution, we would not see the presence of a single Israeli — civilian or soldier — on our lands,” despite there being 1.5 million Arabs living in Israel proper today.
Hillel Neuer, Executive Director of UN Watch, recently spoke out regarding the imbalanced focus and condemnation of Israel at the UN Human Rights Council:
“If in the past year, you didn’t cry out when thousands of protesters were killed and injured by Turkey, Egypt and Libya, when more victims than ever were hanged by Iran, women and children in Afghanistan were bombed, whole communities were massacred in South Sudan, 1,800 Palestinians were starved and murdered by Assad in Syria, hundreds in Pakistan were killed by Jihadist terror attacks, 10,000 Iraqis were killed by terrorists, villagers were slaughtered in Nigeria, but you only cry out for Gaza, then you are not pro human rights, you are only anti-Israel.”
The imbalance of condemnation against Israel and charges regarding the illegality of Israeli settlements are without foundation in international law. Rather than search for a solution to the Israel-Arab conflict, the international community has consistently driven a wedge between Israelis and Palestinians by feeding the narrative of Arab victimhood and Israeli oppression.
THE SIX DAY WAR
Prior to analyzing the rightful ownership of the West Bank and Gaza, it is important to first understand how and when Israel most recently re-conquered the land. During the 1967 war of self-defense, known as The Six Day War, Israel took control of Judea and Samaria, which was illegally occupied by Jordan, and Gaza, which was occupied by Egypt.
Israel proceeded to warn Jordan’s King Hussein against joining the attack against Israel. Hussein, however, worried about the perception of his Arab brethren, refused to hold back arms and decided to attack the Jewish state. Throughout the battle, Judea and Samaria were used as a buffer zone for Israel’s security. Israel captured this land, as it did not belong to any country at the time and it became clear that Israel would need this land in order to ensure her future security.
Syria joined the attack on Israel by initiating an attack on the Israeli settlements in the northern Galilee. This was meant to be a diversion to cover a full-fledged assault further south by three Syrian brigades. Israeli forces were able to thwart the attack, however, Syria, continued constant shelling of their border with Israel The Israeli Defense Force reacted by storming the mountains in the northeast and in spite of stubborn Syrian resistance, completed their mission the next day.
On the evening of June 10, the rising tension dissipated as soon as the Israelis announced that they had accepted the cease-fire. Stationed on the banks of the Suez Canal and Jordan River and deep in the Syrian Heights, Israeli forces rested their weapons, bringing an end to the war.
(For more details on the Six Day War, click here)
IS ISRAEL AN OCCUPYING POWER? LEGAL MINDS SAY ‘NO’
Julius Stone, considered one of the premier legal theorists of the modern era, maintained that the effort to designate Israeli settlements as illegal was a “subversion. . . of basic international law principles.”
Stephen Schwebel, former judge on the Hague’s International Court (1981-2000), concured, in view of his distinction between territory acquired in an aggressive conquest and territory attained through a war of self defense. The Six Day War was an unprovoked war devoted to the destruction of the Jewish state. It was necessary for Israel to conquer Judea and Samaria and Gaza, as they served as buffer zones between hostile neighbors and Israel’s borders. Schwebel wrote,
“Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. (“What Weight to Conquest,” -American Journal of International Law, 64 [1970])
Schwebel made another distinction between acquisition of territory illegally held by another nation and territory that is legally held. From 1948-67 (when Israel became recognized as an independent state and the Six Day War), the West Bank was illegally held by Jordan and Gaza was illegally held by Egypt. Neither country had lawful or recognized ownership of those lands.
In March 2014, Dr. Harel Arnon, a recognized authority and attorney on international law, expanded on Schwebel’s second point in an address to the Knesset in Jerusalem:
“When Great Britain received the mandate over Palestine, including Transjordan, it received it for one purpose only – to establish a Jewish national home. Afterwards, in 1948, Britain returned the mandate to the UN, which had inherited the authority of the League of Nations, and left the territory of Palestine, which is now the State of Israel and Judea and Samaria. In this territory…a legal vacuum was formed, a territory without a sovereign.Israel stood on the borders of 1948 and declared its independence. After, Jordan…unlawfully invaded and annexed Judea and Samaria. This action was indisputably unlawful, and even the Arab League condemned Jordan for doing it.In 1967, Israel returned to Judea and Samaria, got rid of the illegal Jordanian occupation, and took control.In other words, when we want to examine the question of whether or not Israel is occupying Judea and Samaria, we must address the fact that Israel took Judea and Samaria from someone who was there illegally, and therefore Israel cannot be seen as an occupier…the laws of occupation do not apply to Judea and Samaria.”