The Legality of Jewish Settlements in Judea and Samaria

The Trump administration makes an honorable and legitimate decision.

The Trump administration recently made an historical declaration: that the Israeli settlements in Judea and Samaria, are legal. It was not a total surprise since this reporter has always believed that Judea and Samaria, or as some people refer to it as the West Bank, were “disputed territories.” One thing it obviously was not, was “occupied Palestinian territory.”

A Palestinian state has never existed, and therefore the term (fondly used by anti-Israel groups) is false and misleading. United Nations Security Council (UNSC) Resolution 242, drafted after the 1967 Six Day War, was in principle a proposition of “peace for territories.” The resolution specifically emphasized the words “territories” and not “all” the territories.” In other words, the draftees of the resolution made sure that the territories in question would be settled in negotiations. They clearly understood that Israel needed a more secure border, and that areas such as the Jewish Quarter in Jerusalem, and other Jewish owned land in East Jerusalem had to be part of Israel, and that Jerusalem should ideally be unified. Gush Etzion, southwest of Jerusalem, prior to the 1948 War of Independence, was a bloc of Jewish owned communities. Jordan’s Arab Legion conquered it by force of aggression in 1948, killing its Jewish defenders, and expelled its survivors. In 1967, the Etzion Bloc was liberated. The UN or the League of Nations, didn’t resolve that Jews had no right to settle and live in Judea and Samaria, territories which formed the cradle of Jewish civilization.

Instead of coming to the negotiating table after their defeat in the Six Day War, the Arab League states resolved at the Khartoum Summit in August, 1967 to declare the three Nos’ - No to peace with Israel, No to recognition of Israel, and No to negotiations with Israel. Israel therefore, was the legal patron of the territories it captured in 1967. When Egypt signed a peace treaty with Israel at Camp David in 1979, Israel returned the Sinai Peninsula to Egypt. Similarly, when Jordan signed a peace treaty with Israel in July, 1994, it received from Israel all its claims including water resources. Jordan however, renounced its claim to the West Bank in June, 1988 and turned it over to the Palestinians. The Oslo Accords were to resolve the future of the disputed territories by negotiations with the ultimate goal of a Palestinian state. Instead, Arafat and the Palestinian Authority chose to launch an armed struggle known as the Second Intifada. Arafat rejected the generous offer by Israel’s Prime Minister Ehud Barak in the July, 2000 Camp David Summit, presided over by President Bill Clinton. The Palestinians were simply not willing to negotiate an “end to the conflict.”

John Kerry, the former Secretary of State in the Obama administration, described the Jewish settlements in Judea and Samaria as “illegal under international law.” Eugene Victor Rostow, a distinguished legal scholar, Dean of Yale Law School, who served as Under Secretary of State for Political Affairs under President Lyndon B. Johnson, helped draft UNSC Resolution 242. In 1990, Rostow negated the notion that the government of Israel transgressed against the Geneva Convention. The Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before WWII - acts such as the transfer of people into or out of occupied territories for the purpose of extermination, slave labor, or colonization. Rostow pointed out that the Jewish settlers in the West Bank “have not been ‘deported’ or ‘transferred’ to the area by the government of Israel, and their movement involves none of the atrocious or harmful effects on the existing population, which is the goal of the Geneva Convention to prevent.”

Earlier, on September 19, 1983, Rostow wrote an opinion piece in the New York Times headlined, “Israel’s Settlements Right is Unassailable.” He continued, “Israel has an unassailable legal right to establish settlements in the West Bank. The West Bank is part of the British Mandate in Palestine which included Israel and Jordan as well as certain other territories not yet generally recognized as belonging to either country. While Jewish settlement east of the Jordan River was suspended in 1922, such settlements remained legal in the West Bank.” Rostow argued that “Israel is not in the West Bank only as an occupying power, because the West Bank has never been widely recognized as Jordanian. Israel's claims to the territory are at least as good as those of Jordan, since Jordan held the territory for 19 years after a war of aggression, whereas Israel took the area in the course of a war of self-defense.”

David Friedman, U.S. Ambassador to Israel, himself a distinguished attorney, was the driving force in pushing the Trump administration to recognize Jerusalem as Israel’s capital, and moving the U.S. embassy to Jerusalem. Friedman understood that President Trump’s declaration of the legality of the Jewish settlements is not enough. As soon as Mike Pompeo became the U.S. Secretary of State in the spring of 2018, he assembled (with the urging of Friedman) a State Department legal team to examine the legality of the Jewish settlements in Judea and Samaria. For 14 months, the State Department legal team labored over the legal and historical background of the settlements and concluded that the Jewish settlements are absolutely legal. The European Unions (EU) court decision to uphold the marking of products manufactured over the Green Line (in Judea and Samaria Jewish settlements) for exclusion and boycott, prompted Pompeo and Friedman to expedite the decision on the legality of Jewish settlements. It seems that the EU is beholden to Arab and Iranian interests, and perhaps even tainted with a degree of antisemitism.

In his statement to the State Department based reporters, Pompeo told them that “The establishment of Israeli civilian settlements is not per se, inconsistent with international law.” Pompeo added that the decision “increased the likelihood of a Middle East peace settlement.” Pompeo also stated that the Trump administration, as it did with the recognition of Jerusalem as the Israeli capital and Israel’s sovereignty over the disputed Golan Heights had simply “recognized the reality on the ground.”

The Carter administration’s State Department opined in 1978 that the Israeli settlements were illegal. Subsequent U.S. administrations described the settlements as an “impediment to peace” but not as illegal. Pompeo, on his part, referred specifically to the fact that President Donald Trump’s administration was reversing former president Barack Obama’s approach to the issue, tethering its position to the Reagan administration’s formulation in 1981, that settlements were “not illegal.”

Jews have the same right to live in Judea and Samaria as Arabs have to (many consider themselves Palestinians) live in Israel. Perhaps, at some point in the future, a Palestinian leadership would emerge that seeks a resolution to the century-old conflict with an eye on improving the lives of their constituents. In the meantime, Jewish communities in Judea and Samaria are contributing to the development of the region while providing employment, and opportunities to willing Palestinians. Since the Palestinian Authority has rejected numerous chances to create a functional state, it appears that the best option for the Palestinians in the West Bank is to join into a federation with the Hashemite Kingdom of Jordan, where their fellow Palestinians are already a majority.

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