Are Settlements Illegal?
March 16, 2011 9:55 by Yarden Frankl
It has become quite common for the media to add words such as “Israeli settlements are illegal according to international law” to every article that touches on the Palestinian-Israeli peace process. But is the reality that simple?
Moshe Dan looks at this question in an op-ed in Ynet. He points out that the Geneva Convention discussed the taking of land from a sovereign state. However, the area in dispute was never part of any internationally recognized sovereign state. Furthermore, Jewish presence in the area was specifically authorized by the British Mandate.
The core legal issue, according to Michael Newton, Professor of Law at Vanderbilt University and a leading expert in the field, is which nation-state had full sovereignty in this territory when Israel took military and political control.
Logically, since Jordan renounced its claim to Judea and Samaria in 1988, and signed a peace treaty with Israel in 1994, recognizing its current border, the only other possible valid legal claim, defined in the Mandate, is that of Israel; Palestinians have no claim because the area was never a Palestinian state.
Whether Israeli settlements are “unacceptable” and “unhelpful” is debatable. ICRC and kangaroo court rulings against Israel, like those of the International Court of Justice, however, have no basis in proper judicial procedures. They serve only to demonize and delegitimize Israel, and abrogate the meaning of just law.
The legal status of Jewish settlements is by no means a simple matter. By repeating over and over again the subjective opinion that settlements are illegal, the media reinforces the incorrect public belief that there is a consensus on the matter.
John Bradford
10:53 am
Mar 16, 2011
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Yarden Frankl
10:59 am
Mar 16, 2011
As you can see from the article I quoted, Jewish residence in the area was specifically included in the British Mandate. The area that I live in (Gush Etzion) had a Jewish presence until 1948. Then it was conquered by the Jordanian Legion and the Jewish towns were wiped out. How is their reestablishment illegal?
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Leonid
1:41 pm
Mar 16, 2011
Actually it is simple. Arabs should stop their miserable whining, and anti-Semitic, left-winged, Bolshevik scum should put a lid on it once and for all. Then and only then there will be peace and happiness in the region and eventually in the world.
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John Bradford
11:12 am
Mar 16, 2011
So you believe that jews have a right of return to Gush Etzion. I expect you’re claiming compensation for having been forcibly moved at gunpoint from your 1948 home by an invading army. In the intervening period, were you living in a refugee camp and was every aspect of your life controlled by a hostile military presence?
Hot debate. What do you think?
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Leonid
1:32 pm
Mar 16, 2011
Your knowledge of the regions history is somewhat lacking, I would say.
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John Bradford
2:07 pm
Mar 16, 2011
You’re right. If you’re able to answer my questions, I’ll know more, thank you.
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Yarden
6:03 pm
Mar 16, 2011
I did not make any of those claims. I asked how can the reestablishment of towns that had been destroyed in 1948 be considered “illegal.”
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John Bradford
6:58 pm
Mar 16, 2011
Sorry, that was remiss of me – they’re illegal because the UN, and therefore the world, says they’re illegal.
I think you’ve now answered my first two questions – no, you don’t claim the right of return to Gush Etzion and no, you haven’t claimed compensation during your enforced absence.
Can you now answer my final two questions – were you living in a refugee camp during your enforced absence, and was every aspect of your life controlled by a hostile military presence?
I have an additional question, if I may – is it acceptable to reestablish the Palestinian villages destroyed by Israel after 1948?
My point here is that if we can both agree that displaced people can return to their towns and villages that existed before 1948, then perhaps we’re getting somewhere!
That begins to look like a one-state solution to me.
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Yarden
8:13 pm
Mar 16, 2011
Your accusation is that settlements are illegal. I asked you to prove it. As the article points out, international law is far from clear. So far, the only proof you offer is that the UN says so. BUT — a resolution stating that settlements were illegal recently failed in the UNSC. So I ask again — what is your proof that settlements are illegal?
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John Bradford
12:30 am
Mar 17, 2011
I’ve answered this question, an answer that you already perfectly well know. The International Court of Justice says they’re illegal, Israel is a party to that statute, and the United Nations has repeatedly said that settlements violate the Fourth Geneva Convention – a convention ratified by Israel.
Will Leonid or Yarden answer my questions now, please.
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Leonid
10:16 am
Mar 17, 2011
Your questions were answered. Whether or not you accept the answers depends solely on your personal views.
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Yarden
12:42 am
Mar 17, 2011
I could cite numerous legal opinions that dispute this, but alas, I fear that they will not convince you. But I do ask: If Jewish houses in Gush Etzion are illegal, then who has legal rights here and under what basis? The ones who conquered the area in 1948 (Jordan)? The British? The Turks?
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Kira
9:27 am
Mar 17, 2011
John, to answer your question: No, the refugees from the settlement in Gush Etzion that survived the massacre by the Jordanian troops were absorbed by the Jewish communities in Jerusalem, did not claim compensation from Jordan, and spent their own money on rebuilding the settlements, with full legal backing from their government and no protest from Jordan or the UN.
It is very sad that Palestinian Arabs received – and continue to receive – terrible treatment at the hands of their compatriots. However, you are mistaken regarding who controls them. Israel has never controlled the refugee camps, which are funded and run by UNRWA, a singular UN organization whose entire purpose is to handle the Palestinian refugees. All other refugees throughout the world are handled by UNHCR. This leads to situations like the one described in this article by Khaled Abu Toameh: http://www.hudson-ny.org/1953/arab-apartheid. The Jewish People, including Israelis, are saddened by the hopelessness and misery that they are mired in, but UNRWA is much more powerful than we are. There is nothing we can do short of dismantling the Jewish State, which would lead to a daily occurrence of this: http://www.youtube.com/watch?v=D6qF3aPlcq0 , and which we, understandably, are not prepared to do.
We have to worry about our own children. They must worry about theirs. If they do a terrible job, does that mean we need to jeopardize our lives?
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John Bradford
10:54 am
Mar 17, 2011
No you couldn’t.
I presume you mean the oPt when you say “here”. I imagine also you agree that Israel simply took the Golan by military force with no legal basis.
Also, you might have asked who has legal rights in Israel and under what basis? The ones who conquered the area in 1948 (the Jews/Israel)? The British? The Turks?
Who has legal rights in the oPt? That’s a fair question, and not easy to answer, given that the process that brought Israel into existence was never completed, primarily because Israel refused then, and continues to refuse now to implement the various UN resolutions that were passed in the late nineteen-forties and subsequently. Those resolutions remain open for implementation voluntarily by Israel if it chose to do so, but Israelis have consistently continued to elect governments that refuse to implement. If I was an Israeli citizen, I’d start a political party and campaign on the one issue of withdrawal and settlement with the Palestinians. And it’s not until there is a settlement with the Palestinians that your question can be answered. I agree with you that the status of Gush Etzion and other settlements might well be part of any negotiations, along with the rest of the territory that formed part of the British mandate and that was generally known at the time as Palestine.
Consider where we might be now if the second world war and the holocaust had never happened, and consider what the then future for Palestine might have been during the period of the nineteen-fifties/nineteen-sixties. This was the time when Britain began the process of dismantling its Empire (and very successfully, too, on the whole). No doubt, Palestine would have been treated as just another colony, and no doubt its turn would have come round for considering its independence. Probably the UN would have had a role, since the British mandate was gifted to Britain by its predecessor the League of Nations. It seems likely that the international movement for a Jewish state would by then have grown to be very significant and would probably have played a part in independence negotiations. So the scene would have been set for independence negotiations between the people living in Palestine at the time, Jewish as well as Arab/Muslim/Palestinian/Christian/etc on the one hand, with Jewish groups from outside the region on the other, and with Britain holding the ring and continuing to administer the region, with final agreements rubber-stamped by the UN. What would the outcome have been under those circumstances? Your guess is as good as mine, but I think we can presume that the mandate would have ended and that an independent state would have come into existence, based on British parliamentary democracy, but with strong guarantees that respect the rights of the different communities living there. Whether that would have been a one-state or two-state outcome is debateable. But we probably wouldn’t have had sixty years of bloodshed and hatred, and the question of who has legal rights in Gush Etzion would have been settled at the time – the citizens of whatever country it became part of.
The problem for the Palestinians is that they can’t negotiate on an equal basis with the other party that’s holding a gun to their heads. That’s the problem that we in Britain have with Argentina. As much as we may wish to hand back the Falklands to Argentina (and we would have done by now, had they not invaded – on the whole Anglo-Argentinian relations have always been extremely good), we can’t now, otherwise it would appear that we’re giving in to bullies, do you see the point?
The question now though, is that we have to find a way of living that is reasonably tolerable for both sides until such time as Israel does decide to accept the UN resolutions, or is forced to do so. That must surely mean that each side accepts the status quo ante 1967 (ie, the green line de facto border), on an uneasy basis of live and let live until there is a permanent settlement. In other words, we should all agree to go back to the position that existed between 1948 and 1967. Which means that Israel must withdraw from the oPt.
Then negotiations can begin to settle the problem. It’s not reasonable arbitrarily to claim a particular piece of territory and hold it by military force whilst asking the question – who has legal rights here? You ask the question first, and wait for an answer before you act. And Israel won’t get an answer until it withdraws. Meanwhile, the UN has ruled that settlements are illegal.
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Leonid
11:55 am
Mar 17, 2011
Such ignorance. So many word, so little meaning. Life hasn’t been good for you, ah John. Let me explain this for you in terms you might understand. We are not leaving and we are not about to share our democratic state with a bunch of genocidal islamo-fascists or any other murderess bunch, no matter what the UN or John Bradford says. We are just not that self-hating and suicidal as the European left. This is our land historically, legally and morally, and we will do anything within our power to protect it.
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Kira
10:12 pm
Mar 17, 2011
John, the situation you described as a what-if is exactly what happened. Except that the Arab world rejected the UN solution and started a war.
The political party you say you would found in Israel already exists – and not only one, several.
But even then we might possibly agree with going back to 1966 if only our adversaries were to be satisfied with such a solution. However, they insist on going back to 1947, and that is not an option for us. A lot of water under the bridge since 1947.
As for who’s holding a gun to whose head … Ask Tamar Fogel, the 12 year old girl who came home to find her family slaughtered.
As a Jew, I am not able to visit the Palestinian Authority. It is illegal, and highly dangerous. I might get lynched, as happened in 2000. However, if a Palestinian Arab crosses the border into Israel, they are 100% safe here.
The situation is not as simple as you describe.
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John Bradford
2:15 pm
Mar 18, 2011
Kira,
Thank you. I am so sorry but I cannot continue this discourse as nobody, including you, has thought to distance themselves from Leonid’s unacceptable remarks
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ralph
11:46 pm
Feb 09, 2013
To say that Israeli settlements are illegal is to forget that the so-called occupation was
the consequence of the attack of Arab countries against Israel.
Therefore it is a legal act of self defense against an illegal aggression.
Moreover it must be mentioned that the Jews which were the majority of the inhabitants
of Jerusalem were forced to leave their homes by the Jordan Arab Legion in 1948 without
any reaction from the international community and the UN.
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