A Nation of “Illegals”?

Although many substantive legal arguments support the right of Jews to build in Judea, Samaria (the West Bank) and the eastern part of Jerusalem, Israeli communities are accused of being “illegal” according to “international law”. But, what is this “law” and who decided that Israel was guilty?

UN resolutions are not laws, or sources of laws. The UN’s primary judicial organ, the International Court of Justice (ICJ) issues advisory opinions which are only recommendations, and, although they are influential, are not proper legal decisions. Unable to get a fair hearing before the ICJ, Israel does not appear there.

In fact, the UN Charter (Article 10) does not grant the General Assembly, or the ICJ the authority to determine the ownership of disputed territories – although it does so anyway.

“The law” is the Fourth Geneva Convention (GC IV)  – one of the most important sources of conventional international and humanitarian law. The International Committee of the Red Cross (ICRC), the official “guardian” of the GC IV, met secretly at their headquarters in Geneva in 1971 and unilaterally decided that Jewish communities built in areas acquired after the Six Day War were actually “illegal” because they “violated” GC IV. Because ICRC rulings are considered authoritative, they are used by the international community to condemn Israeli “settlements,” and “occupation.”

The legal status of Palestine, designated as the “Jewish national homeland,” was established by the League of Nations (1920), the San Remo Agreements (1920) and the British Mandate (1922), and endorsed by the US Congress; that was “the law,” and remains so today, despite the ICRC.

ICRC and UN Resolutions declared that “Israeli settlements are illegal.” They didn’t say, however, to whom this territory belongs. Palestinian leaders have said they will declare sovereignty and ask for UN recognition. But, with the Palestinian Authority (PA) divided between Fatah and Hamas, its leadership shaky, who rules? And who will rule in the future?

Arab leaders themselves can’t decide about a second Arab Palestinian state (the first was Transjordan, established in 1921, two-thirds of whose population is Palestinian) since that means accepting Israel. However, none are willing to give up the “Palestinian right of return,” in other words, the control of eastern Jerusalem and the elimination of settlements.

UN recognition of the PLO, beginning in 1974, six months after it massacred school-children in Ma’alot, provided legitimacy, but the PLO – “the sole representative of the Palestinian people” — has rejected the “two-state-solution” as an end-of-conflict. Its charter, calling for the elimination of Israel by force, remains unchanged.

The Oslo Accords (1993), Hebron Agreement (1997), Wye River Accords (1998) and Gaza Disengagement (2005), which gave the PA large areas of Judea, Samaria and all of Gaza and placed nearly all Arab residents of these areas under PA rule, provided the basis for self-government, and eventual statehood.

Legal questions regarding Jewish presence in Judea, Samaria and eastern Jerusalem remain; the ICRC’s decisions, therefore, are crucial. Since ICRC deliberations and protocols are secret, however, there is no way of knowing how they arrived at their decisions, nor is there any possibility of appeal.

The ICRC’s unique interpretation, contrary to the obvious intent and purpose of GC IV, was designed specifically to thwart Israeli settlements. It was never applied in a comparable situation elsewhere.

Opposing Jewish communities in Judea, Samaria and Jerusalem may be politically expedient, a convenient charge to indict Israel, but assaulting their legality is baseless. Many prominent jurists and the Israeli government have rejected charges of “illegality” and “occupation,” arguing that the provisions of GC IV do not apply, and that, at best, these areas should be called “disputed,” subject to negotiations.

Despite the ICRC’s refusal to open its archives and explain itself, in defiance of all democratic and judicial norms of conduct, accountable to no one, and deliberately distorting facts, their decisions are widely accepted as law. We need to know how and why the ICRC made those decisions. What are they hiding, and why?

Moshe Dann is a writer and journalist living is Israel. He can be contacted at moshedan@netvision.net.il

  • joelsk44039

    Best explanation of the truth behind the so-called "illegality" of the communities in Judaea, Samaria and Jerusalem that I've ever read.

  • William Smart

    Nobody thinks Israel can build in the West Bank, even the US is in no doubt that it's illegal by every form, or possible form, of domestic or International law.

    Some people fiercely defend the ethnic cleansing of 1948, but even they're unhappy this time. This time it smacks far too much of "Living Room in the East".

    • Stern

      Of course, you're referring to the ethnic cleansing of Jews from the Old City of Jerusalem and from the Gush Etzion bloc. There was no other ethnic cleansing. Just thought I'd point that out for readers who may not know the facts.

      • http://intensedebate.com/people/aspacia aspacia

        Bravor Stern:-)

    • bert

      When you say the "US" you are referring only to our foreign policy gang that is an entity unto itself and issues pronouncements influenced by our dependence on Arabia and their oil. Some honesty and humility would be in order considering that the U.S. is based on expansionist theft of land, genocide of the native Indians and enslavement of black people. You must also be a pagan or an atheist who trashes the holy bible that our American founders read and respected including its promise to the Jewish People.

      • William Smart

        US legal opinion is virtually unanimous (sole exception, the late Eugene Rostow) that the settlements are illegal. Same for the EU, Canada etc etc.

        Israeli legal opinion, rendered to their government by Theodor Meron and others after 1967 say the same, "civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention … to which Israel was a signatory – forbade an occupying power from moving part of its population to occupied territory. The Golan, taken from Syria, was "undoubtedly 'occupied territory' "

        Even the Israeli High Court (June 2005 ruling upholding the constitutionality of the Gaza disengagement) has determined that the West Bank and Gaza area are lands seized during warfare, and are not part of Israel, they are "held by the State of Israel in belligerent occupation" and "the legal meaning of this view is twofold: first, Israeli law does not apply in these areas. They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation".

      • http://intensedebate.com/people/aspacia aspacia

        LOL, and the docile Aztecs were so kind to their neighbors. Get Real and read some Native American Oral Tradition for insight.

    • http://intensedebate.com/people/Stephen_Brady Stephen_Brady

      Lebsensraum?

      William, is it really necessary to make not-so-subtle illusions to the Nazis, when you're arguing against Israeli government policy? Haven't I heard somewhere that someone who brings up the Nazis and Hitler in an argument automatically loses?

      And in the events of 1948, had the Arabs won that conflict, I don't have the slightest doubt that every Jewish man, woman, and child would have been slaughtered …

      "Nobody thinks Israel can build in the West Bank …". The use of absolutes is not recommended in debate.

      • http://intensedebate.com/people/aspacia aspacia

        Good Brady:-)

    • http://intensedebate.com/people/Rifleman Rifleman

      No, it smacks of defensible borders. The arabs rejected the UN drafted legal borders and initiated trial by combat three times to eradicate Israel and ethnically cleanse the area of Jews before Israel decided to keep the invasion launching pads.

      What ethnic cleansing in '48? Are you referring to when the arabs promised local muslims they'd get their Jewish neighbors' property if they evacuated Israel under threat of the combined arab army while the Jews begged them to stay and promised them citizenship and civil rights in Israel? Or are you talking of the actual cleansing of Jews from the muslim areas?

      If it was living room they were after Israel would extend from the Nile to Turkey by now.

    • http://intensedebate.com/people/aspacia aspacia

      Smart, this is a Zionist who hopes that all Arabs are paid compensation, and expelled from Gaza, the West Bank and Israel. Hopefully, they can find a land that will welcome them, as their brethren will not.

      Look at a map. I am sick of the violence, and this will end it.

      From a Deist, Goy.

  • Dummy Two

    Fine. From now on residents of Cleveland can't build in Windsor, Ontario.

    • Syd Barrett

      Oh great. There goes my vacation house.

  • badaboo

    ETHNIC CLEANSING OF 1948 ???? Who are you kidding , first of the UN unanimously agreed on Israel ' s borders , secondly that was immediately followed by a declaration of War against Israel by Syria , Lebanon Jordan Iraq and Egypt , and THIRDLY , 365,000 arabs CHOSE to LEAVE ISRAEL WILLING , at the behest of their fellow arabs lest they be destroyed along with Israel . THOSE 365,000 , are the origin of present day Palestinians , which BTW , were never called Palestinians until the late 60;s and early 70's when Arafat and his ilk needed justification and a rationale to hijack and blowup airliners , as well as constant acts of violence and sabotage against Israerl .

    • Chuck

      ethnic cleansing was the 900,000 Jews who were expelled from their homes just because they were Jewish as Stern mentions above.
      Obviously there was no ethnic cleansing by Israel, note many Arabs living in Israel then and to this day

  • http://intensedebate.com/profiles/guydewhitney Guy DeWhitney

    Someone probably sat them down and said that if they did not make this ruling all Red Cross operatives in all Muslim countries would be declared enemies of Islam.
    or am I just on ahttp://hereticscrusade.com ?