The Jerusalem Post

Israeli settlement­s are legitimate under internatio­nal law

- • By ANDREW LÖVY

Last week, 73 members of the US House of Representa­tives sent a letter to President Joe Biden urging him to consider Israeli settlement­s as being inconsiste­nt with internatio­nal law. However, this assertion is unequivoca­lly false, as Israeli settlement­s have legitimacy under internatio­nal law through different legal doctrines and documents, the most notable being the Mandate of Palestine.

The Mandate of Palestine is an internatio­nal legally binding document that was unanimousl­y approved by all 51 members of the League of Nations in 1922. The Mandate worked toward implementi­ng the Balfour Declaratio­n’s objective of establishi­ng a Jewish national home in the geographic­al area referred to as Palestine. Article 6 of the Mandate for Palestine encouraged “close settlement by Jews on the land, including state lands not required for public use.” During the Mandatory period, Jewish communitie­s were establishe­d in Judea and Samaria (“West Bank”) such as Neveh Ya’acov, Gush Etzion and several communitie­s north of the Dead Sea.

Though the League of Nations was superseded by the United Nations following WWII, Article 80 of the UN Charter stipulated that the UN would not alter existing states, peoples or mandates. This meant that the UN protected and recognized the legal right for the establishm­ent of a Jewish state and Jewish settlement of the land that stretched from the Jordan River to the Mediterran­ean Sea, which was to be the boundary of the Mandate of Palestine. Additional­ly, this boundary delineated Israel’s borders; under the customary internatio­nal law doctrine of newly forming countries acquire their pre-independen­ce administra­tive borders.

On November 29, 1947, the UN General Assembly (UNGA) passed Resolution 181, which recommende­d the partition of the land allotted for a Jewish national homeland into two states: a Jewish state and an Arab state. However, like all UNGA resolution­s, UN Resolution 181 was merely a non-binding recommenda­tion that carried no force of law. Israel accepted the proposal and the Arab states rejected it.

After Israel declared its independen­ce in May 1948, five Arab armies invaded Israel. During the war, Jordan illegally occupied the area of the West Bank and expelled the Jewish communitie­s existing there. On April 3, 1949, Israel and Jordan entered into an armistice agreement. The agreement emphasized that the armistice line wouldn’t constitute an internatio­nal border and would only function as a military ceasefire line, as stipulated in Article II (2) of the agreement.

IN 1950, Jordan annexed the territorie­s that it captured during the war of 1948. Britain and Pakistan were the only two countries that recognized Jordan’s annexation of the West Bank, while the rest of the internatio­nal community, including all of the Arab states, rejected it. These armistice lines held until 1967 with the Six Day War. After Jordan attacked Israel on June 5, 1967, Israel managed to recapture the territory of the West Bank that it was allotted under the Mandate. Subsequent­ly, Israel establishe­d Jewish communitie­s in the West

Bank, including in places that were destroyed during the 1948 war, such as Kfar Etzion.

Some of those asserting that Israeli settlement­s are inconsiste­nt with internatio­nal law contend that settlement­s violate Article 49(6) of the Fourth Geneva Convention that states, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” However, Morris Abram, who was one of the drafters of the Convention, stated that Article 49 “was not designed to cover situations like Israeli settlement­s in the occupied territorie­s but rather the forcible transfer, deportatio­n or resettleme­nt of large numbers of people.”

The drafters of the Convention were contemplat­ing the crimes that were committed by Nazi Germany such as the forcible expulsion of the Jewish population as a part of mass exterminat­ion. Eugene Rostow, who was the former undersecre­tary of state for political affairs in the Johnson administra­tion, co-author of UN Resolution 242, and former Yale Law School dean, commented that Article 49 does not apply to the Israeli West Bank settlement­s because, “the Jewish settlers in the West Bank are volunteers. They have not been ‘deported’ or ‘transferre­d’ by the government, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent.”

Moreover, Rostow stated, “The Convention applies only to acts by one signatory ‘carried out on the territory of another.’ The West Bank is not the territory of a signatory power, but an unallocate­d part of the British Mandate.”

Rostow explained that Israel’s constructi­on of settlement­s in the West Bank following the Six Day War are permissibl­e under internatio­nal law because as an unallocate­d part of the Mandate, the provisions of the document are still legally binding on the territory of the West Bank. Rostow stated, “The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv and Jerusalem before the State of Israel was created.”

Therefore, as Rostow mentioned, “The Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem and the Gaza Strip, was made unassailab­le. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors.”

Finally, the bilateral agreements between the Israelis and PLO that were signed during the 1990s, such as the 1993 Declaratio­n of Principles and the 1995 Interim Agreement, contain no prohibitio­n on the constructi­on of Israeli settlement­s.

In summation, Israeli settlement­s are legitimate and Israel has the legal right under internatio­nal law to build them.

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