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 [email protected]