Israel's Legal Right to Settle in the West Bank - Judea and Samaria and Gaza, Golan Heights

Israel's Legal Right to Settle in the West Bank - Judea and Samaria and Gaza, Golan Heights

The forgoing timeline summarizes the recent turbulent history of Palestine-Israel. What happened is often misinterpreted, and the charge is frequently made that Israeli settlements on the West Bank - Judea and Samaria are illegal and that Israel is illegally occupying the West Bank - Judea and Samaria. The legal case for such a statement is weak. When you read the terms of the San Remo Conference which adopted the Balfour Declaration of 1917 and The Mandate for Palestine which implemented the San Remo terms was signed by all 52 members of the League of Nations. Israel is within its legal rights.

§ International-law arguments against the settlements have rested primarily upon two sources. The first of these, the 1907 Hague Regulations, protect the interests of a temporarily ousted sovereign in the context of a short-term occupation. Article 43 of the Regulations calls for the occupant to "respect .... the laws in force in the country" and Article 46 bars an occupying power from confiscating private property.

Settlements are also opposed through the 1949 Fourth Geneva Convention. Article 49(6) states: "The occupying power shall not deport or transfer parts of its own population into territories it occupies". Both these legal arguments rely upon the concept of "occupation of a legally owned land". The following points neutralize this concept.

§ First, we should note that the 1949 armistice borders were not recognized by Arab states, which continued to refuse to recognize Israel. So it is contradictory for Arab states to later state that these are 'legal' borders; the 1949 Armistice Green Line is not Israel's Legal Border!

§ Secondly, Jordan occupied both East Jerusalem and the West Bank - Judea and Samaria during the 1948-49 war and only gained these areas via war and the Green Line of the UN armistice. These areas had never formally been allocated to Jordan and so were strictly un-allocated Palestine Mandate territory. Later, between 1949 and 1967 Jordan simply attempted illegal annexation of this newly gained territory, but then in 1988 Jordan formally renounced any claim to the West Bank - Judea and Samaria and East Jerusalem. Eminent legal scholars, such as Prof. Eugene Rostow therefore maintain that Israeli settlers have as much right to live in the West Bank as non-Jews. He states:
"Under international law, neither Jordan nor the Palestinian Arab 'people' of the West Bank - Judea and Samaria and the Gaza Strip have a substantial claim to the sovereign possession of the occupied liberated territories.
The West Bank - Judea and Samaria should be considered 'un-allocated territory'".

§ The Israeli Government follows this argument and denies that the occupation - liberation of the West Bank - Judea and Samaria is illegal on the grounds that the land was not previously occupied lawfully by any other state. This view is supported by Prof. Judge Schwebel (former President of the International Court of Justice) who states:
"The armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them."
This of course agrees with those who drafted UN Resolution 242.

§ In June 2011, Dr. Jaques Gauthier, an international human rights lawyer from Toronto addressed the European Parliament in Brussels on the legal issues regarding Jerusalem and Israel. Referring to the 1922 British Mandate for Palestine and to Article 80 of the UN Charter he said:
"For anyone who is interested in justice, these are issues which we have to study carefully ... the rights vested in the Jewish people stand on very solid legal ground and are valid to this day."
Under Article 80 and the 1922 Mandate he maintained that Jerusalem cannot be divided and that Jews still have the legal right to settle anywhere in Mandated land.

So since there is no legal ownership of Judea and Samaria, these areas cannot be regarded as "occupied territory". The armistice borders never received international recognition. All of western Palestine - Israel, from the Jordan to the Mediterranean, including Gaza and all of Jerusalem (as in Fig.3) remains legally open to Jewish settlement under the original British Mandate. International lawyers maintain that this right of settlement is protected by Article 80 of the UN Charter which recognizes the Trust (British Mandate) handed to it by the League of Nations. (The British violated the terms of the Mandate numerous times, including restricting Jewish immigration, which caused violence and death to many Jewish people).
It appears that the world prefers to 'believe a lie' and still cry "occupied territory"!

Under the Ottoman Empire law in Palestine, records of land registration show that over 90% of the land in Palestine was owned by the government. The balance was owned by wealthy Arabs from Lebanon and some of the Leaders that were living in Palestine. Very little land was owned by the local working people. The Jews purchased much of their land from the wealthy absentee Arab landlords at premium prices (see: the Mufti of Jerusalem's testimony in front of the British Peel Commission in 1937).

After WWI the Ottoman Empire relinquished its ownership of all the conquered territories, which covered a good part of the Middle East, to the Allied powers. It was then assigned by the Allied powers to Arab countries and Palestine was assigned to the Jewish people to reconstitute their homeland of Israel.

The Arabs persecuted and expelled over a million Jewish families from Arab countries where Jews had lived for over 2400 years. The Arabs confiscated from the Jews their assets, businesses, homes and Real estate (120,440 sq. km. which is 5-6 times the size of Israel) valued in the trillions of dollars. Due to these expulsions many died from starvation and hardship. About two thirds of the Jews expelled from Arab countries resettled in Greater Israel. Today, the Jewish population that was expelled from Arab countries numbers over four million in Greater Israel alone, plus another few million in other parts of the world.