Monthly Archives: December 2014

The Legal Israeli

Israel bashers will wax lyrical about the illegality of Jewish settlements east of the Green Line and in Judea and Samaria which was invaded and occupied, in defiance of international law, by Jordan 1948-1967.

The facts are that Israeli settlement is not illegal. By international law.
This is why the Obama administration now harps on about the “legitimacy” of Israeli settlement and not illegality.

It will be tedious to repeat Article 49 of the Fourth Geneva Convention, but for those new to the arguments:
“Individual or mass forcible transfers, as well as deportations of protected persons
from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

Of course, Israel did not transfer anybody from Judea and Samaria in 1967. Quite the opposite, the ethnic cleansing of Jews by Jordan in 1949 underscores the illegal eviction of Jews by the Jordanian Muslims, enthusiastically supported by only two states: Pakistan. And Britain….

Article 49 goes on to state: “…the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.”

Thus, international law permits operations involving security; the clause allowing in principio building of the security barrier inside the West Bank that Israel erected in reaction to the Second Intifada, and relocation of people impacted to construct such barrier.

And so, in international law, Jews moving to Judea and Samaria is part of the ongoing provision legally established internationally in 1922, and is jus cogens in customary international law.

Israel is in no way legally obligated to maintain a status quo under Article 55 of the Hague regulations because Israel is not bound by the laws of Jordan, which illegally seized and annexed the area. Even if Pakistan pronounced it OK in 1948…..

On the other hand, Israel makes the case that Judea and Samaria need to be administered according to British laws which had an international (legal) mandate before the Jordanians took illegally invaded and occupied the area.

To that extent, Israel is fully compliant with international law as laid down by Britain which state that no person should be forbidden to live in any part of the entirety of the Mandate (including Gaza, Israel and the West Bank) on the basis of religion, per Article 15 of that 1922 Mandate: “The Mandatory shall see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, are ensured to all. No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language. No person shall be excluded from Palestine on the sole ground of his religious belief… {and that) Jewish immigration under suitable conditions shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”

In other words, in accordance with the same international law and legal authority which created Syria, Lebanon and Iraq, administration under British law encouraged Jews to live throughout Judea and Samaria, including state lands, and it can therefore not be illegal for any Jew to live there.
And it is this legal ruling which frustrates the very pliable Obama.

Further, Democrats like Carter and Obama have no legal recourse to back up their condemnation of Israeli settlement as illegal because Jews moving to, and living in, the West Bank, could ONLY be considered illegal, if Jordanian law was to be maintained in the area.

Of course, not even Jordan’s forcible seizure could circumvent customary law in the ICJ from ruling that “Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.” (Schwebel, 1970).

For those who fret that Israel may, in some difficult to understand way, be deserving of pariah status as an illegal occupying force, I would suggest that under international law, the League of Nations Mandate explicitly recognized the right of Jewish settlement in all territory allocated to the Jewish national home in the context of the British Mandate. And the British Mandate covered the area that is currently Israel, all the disputed territories (and even what is now Jordan), and even Gaza in its original iteration.

These rights under the British Mandate were preserved by the United Nations, under Article 49 of the UN Charter.

Today, Israel faces serious diplomatic challenges to its legitimacy as a Jewish state only after Arab intransigence, bravado and supremacism saw that it could never remove Israel through military force (1948, 1967, 1973).

But like everything else in the Jewish people’s 3,000 year history, this too shall pass.

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