Q & A About Jewish Communities in Judea and Samaria

  
Via:  buzz-of-the-orient  •  3 weeks ago  •  11 comments

By:   Victor Rosenthal

Q & A About Jewish Communities in Judea and Samaria
Under international law, occupation occurs when a country takes over the sovereign territory of another country. But the West Bank was never part of Jordan, which seized it in 1949 and ethnically cleansed its entire Jewish population. Nor was it ever the site of an Arab Palestinian state.

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Q & A About Jewish Communities in Judea and Samaria

Following  the surprise announcement by US Secretary of State Mike Pompeo  that “[t]he establishment of Israeli civilian settlements in the West Bank is not  per se  inconsistent with international law,” I’ve prepared a short Q & A on the subject:

Q:  Why do you say “Jewish Communities” and not “settlements,” and why not “West Bank?”
A:  “Settlements” implies that they are outside of Israel. “Communities” is neutral. “West Bank” is a name invented by the Jordanians in 1950, after they ethnically cleansed the area of Jews and illegally annexed it to Jordan, an action recognized only by the UK and possibly Pakistan. “ Judea and Samaria ” is the traditional name used from biblical times, even by the UN before 1950.

Q:  The Arabs, the EU and the UN often say that “settlements” are illegal under international law. What international law are they talking about?
A:  Usually they mean the  Fourth Geneva Convention , which prescribes conditions for a belligerent occupation. Article 49, paragraph 6 says “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” There are also other limitations on what an occupying power can do in the Geneva Conventions and the Hague Convention of 1907, roughly based on the idea that the territory doesn’t belong to the occupier unless or until a formal treaty establishes its status.

Q:  Why did the American government agree with them?
A:  The State Department had been wedded to the idea that Israel should return to her pre-1967 borders since the oil shock of the 1973 war. The requirement for “secure and recognized boundaries” in  UNSC resolution 242  in 1967 receded into the background, disappearing entirely by the time of Barack Obama.

Naturally settlements were a problem. President Carter very much wanted to include Israeli withdrawal from Judea, Samaria and Gaza in the Camp David agreement that returned the Sinai to Egypt, but was unable to do so; the Camp David talks did produce a “ Framework for Peace in the Middle East ,” but it did not mention settlements, and was scuttled anyway by the PLO and the UN.  The arguments that settlements were inconsistent with international law were set out in  an opinion  written for President Carter in 1978 by State Department legal advisor Herbert J. Hansell, and never changed until Pompeo’s announcement.

Q:  Why do you disagree?
A:  Two reasons: first, it is a misapplication of 4 th  Geneva 49-6, which was intended to prevent forced transfers of population such as Germany’s deportation of Jews to occupied Poland, and not the voluntary movement of people. Second, because Israel’s legal claim on the territory is stronger than that of any other country, there is no belligerent occupation: the land is more properly considered  disputed  rather than  occupied .

Q:  What do you know? You’re not an expert in international law!
A:  No, but Eugene Kontorovich is. And here is  what he said  about this issue:

Under international law, occupation occurs when a country takes over the sovereign territory of another country. But the West Bank was never part of Jordan, which seized it in 1949 and ethnically cleansed its entire Jewish population. Nor was it ever the site of an Arab Palestinian state.



Moreover, a country cannot occupy territory to which it has sovereign title, and Israel has the strongest claim to the land. International law holds that a new country inherits the borders of the prior geopolitical unit in that territory. Israel was preceded by the League of Nations Mandate for Palestine, whose borders included the West Bank. Hansell’s memo fails to discuss this principle for determining borders, which has been applied everywhere from Syria and Lebanon to post-Soviet Russia and Ukraine.

Even on its own terms, [Hansell’s 1978] memo’s conclusions no longer apply. Because occupation is part of the law of war, Hansell wrote, the state of occupation would end if Israel entered into a peace treaty with Jordan. In 1994 Jerusalem and Amman signed a full and unconditional peace treaty, but the State Department neglected to update the memo.

Even if there were an occupation, the notion that it creates an impermeable demographic bubble around the territory—no Jew can move in—has no basis in the history or application of the Fourth Geneva Convention. Almost every prolonged occupation since 1949—from the Allies’ 40-year administration of West Berlin to Turkey’s 2016 occupation of northern Syria—has seen population movement into the occupied territory. In none of these cases has the U.S., or the United Nations, ever claimed a violation of this Geneva Convention provision.

Q:  But what about those countless UN resolutions condemning Israel? Didn’t the Security Council pass a resolution (2334) that clearly declared Israeli settlements illegal?
A:  General Assembly resolutions are non-binding, and even Security Council resolutions do not have the force of international law unless they are passed under Chapter VII of the UN Charter, “Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression.” Resolution 2334 – which passed because the Obama Administration abstained in December of 2016 – was not such a resolution.

Q:  But the UN, the EU, the New York Times, and many other organizations say Jewish communities are “illegal” or (as Obama liked to say) “illegitimate.” Doesn’t the international consensus count for something?
A:  International law isn’t a popularity contest, and the UN is not a world government that can make or (except in special circumstances) enforce laws. The fact that many nations and individuals dislike Israel as a result of their religious beliefs, the remnants of cold-war Soviet propaganda, their relationship with oil providers, their desire to stick it to the US, or plain old Jew-hatred, does not matter.

Q:  What exactly did Pompeo do?
A:  Pompeo made it clear that the US did not intend to judge whether any particular community was legal (I presume he meant that one built on land that was privately owned by someone else would be illegal), but that it was no longer the case that the US would consider a Jewish community illegal simply because it was located in Judea/Samaria – or, to put it another way, that a community in Judea/Samaria would be considered illegal simply because it was composed of Jews.

Q:  Does this actually matter?
A:  Yes, for two reasons. One is that various groups are taking actions (boycotting products from the communities or requiring special labeling on them) on the basis of their opinion that they are illegal. The fact that the US does not agree is a powerful argument that these actions are unfairly discriminatory, and might be a basis for legislation against them in the US.

The other reason is that the idea that these communities are illegal presupposes a certain view of the conflict between Israel and the Palestinian Arabs, in which land east of the Green Line is “Arab land” rather than a disputed territory on which both sides have claims. This clearly prejudges the outcome of any negotiations, and leads to the Arabs demanding the freezing or evacuation of Jewish communities as a precondition for negotiations. One might reasonably ask how the illegal ethnic cleansing and 19-year occupation of Judea and Samaria by Jordan converted the land set aside for “close settlement” by Jews in the Palestine Mandate into “Arab land.”

***

Here is a special question for extra credit:

Q:  What has Trump and his administration done for Israel so far?
A:  As of today, the Trump Administration has finally fulfilled the promise of the US Congress to move the US Embassy to our capital and has asserted – as previous administrations would not – that Jerusalem is the capital of Israel. It cut funding for the Palestinian Authority while it continues to pay terrorists, and reduced the amount sent to UNRWA, the UN agency that nurtures and perpetuates the Palestinian refugee problem. It recognized Israel’s annexation of the Golan Heights. It took the US out of the Iran nuclear deal, and re-imposed sanctions on Israel’s most serious enemy. It spoke out strongly for Israel in the UN, in the voice of Ambassador Nikki Haley. And now it has separated America from those who have dishonestly accused Israel of violating international law.

All of these actions are reasonable and should have been taken by prior administrations, which often voiced their support of Israel but did little to change wrong or discriminatory policies toward her. It’s been suggested that they are all cheap, merely “symbolic,” and have little effect on the ground. But if this is so, then why didn’t previous presidents act?

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Buzz of the Orient
1  seeder  Buzz of the Orient    3 weeks ago

It all seems logical to me, but then I'm not biased against Israel.

 
 
 
Enoch
1.1  Enoch  replied to  Buzz of the Orient @1    3 weeks ago

Dear Brother Buzz: Some truths are inconvenient to those who take a unilateral opposition to Israel.

Best not to confuse with facts those whose minds are all ready made up.

P&AB.

E.

 
 
 
Buzz of the Orient
1.1.1  seeder  Buzz of the Orient  replied to  Enoch @1.1    3 weeks ago

Agreed, Enoch. 

 
 
 
Buzz of the Orient
2  seeder  Buzz of the Orient    3 weeks ago

I have a feeling this article may be identified as being about American divisive politics rather than about the communities located in Judea and Samaria, so since it's almost 10 pm here and I intend to turn off my computer, I will lock this seed for the night and reopen it in about 9 hours from now.

 
 
 
Buzz of the Orient
3  seeder  Buzz of the Orient    3 weeks ago

This seed is now unlocked for civil comments, if anyone is interested.

 
 
 
Buzz of the Orient
3.1  seeder  Buzz of the Orient  replied to  Buzz of the Orient @3    3 weeks ago

Locking the seed for the night again.  Will reopen in in about 9 hours from now, although I really see no purpose in doing so.  Seems most members would rather read propaganda than truth.

 
 
 
Buzz of the Orient
3.1.1  seeder  Buzz of the Orient  replied to  Buzz of the Orient @3.1    3 weeks ago

LOL.  I posted that and then forgot to lock it.   Fortunately only one member posted after that with civil comments. 

Okay, it's unlocked.

 
 
 
JohnRussell
4  JohnRussell    3 weeks ago

Buzz, Israel is not on a lot of American's minds right now.  I wish your articles about it got more comments, but it is what it is. 

I don't know enough about Judea and Samaria to venture an opinion. 

 
 
 
JohnRussell
5  JohnRussell    3 weeks ago

Looking through it, it seems like pro-Netanyahu, right wing interpretation of the issues. 

There will be no two state solution if Israel keeps moving population into disputed territory. 

You used to support a two state solution Buzz, what changed you? 

 
 
 
Buzz of the Orient
5.1  seeder  Buzz of the Orient  replied to  JohnRussell @5    3 weeks ago

LOL.  Getting really old does have its detriments.  I posted that I was locking this seed for the night and then forgot to lock it.  Now where did I put my glasses?

Thank you John for your civil comments to the seed.  Yes, I agree that the seed is "right-wing" oriented.  There is plenty of historical, legal and mandate-convention-agreement (even biblical, if anyone cares) evidence that Israel is entitled to Judea and Samaria. Except for the USA nobody else will agree because it belongs to the "Jooze".  Even Canada has betrayed Israel now, so I will REMAIN an expatriate.  What changed me is seeing and believing the preponderance of evidence that I have taken the time to review that obviously the US government lawyers have spent years studying (as well as two intelligent non-Jewish UNPREJUDICED members of this site have taken the trouble to do and came to the same conclusion) and and as well I'm convinced of the logic of the Jordan Option.  A while back I even came up with my own solution - it was to extend Gaza into the Sinai to make up for the "Palestinians'" (a designation CREATED by an Egyptian - Arafat) removal from the West Bank. 

Since Israel honours the Rule of Law, and as a retired lawyer that is what I was trained to place my trust in, Netanyahu will be deserving of the fate he gets IF he is proven guilty beyond a reasonable doubt of the offences with which he is indicted. 

 
 
 
Buzz of the Orient
6  seeder  Buzz of the Orient    3 weeks ago

My former law school classmate, now the founder of the ISRAPUNDIT web site, Ted Belman,  puts it all very succinctly:

Israel was and is the sovereign of this land by virtue of the fact that when [it] declared independence in 1948, international law had held that Israel’s borders included all land west of the Jordan River.  International Law and the State of Israel
“In international law, there is a clear rule regarding the establishment of new countries: the country’s borders are determined in accordance with the borders of the previous political entity in that area. So, what was here before? The British Mandate. And what were the borders of the British Mandate? From the Mediterranean Sea to the Jordan River.” Kontorovich:    I sraeli rule in the ‘West Bank’ is legal under International Law 

Secondly, [does Israel] have to wait til doomsday for a political settlement?  At what point of time can [Israel] just declare sovereignty over all the land and be done with the political settlement?
Eugene Kontorovich was for many years a Professor at Northwestern University School of Law whose research spans the fields of constitutional law, international law, and law and economics. He is an expert in international jurisdiction and criminal law, and has written extensively about the legal aspects of the Israeli-Arab conflict.  He and his family now live in Israel.
 
 
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