Reams have already been written about the “brazen flouting of international law” in the aftermath of Secretary of State Pompeo’s declaration that the United States no longer considered Israeli presence in Area C illegal.
There were expected comments from breathless opinion pieces in Ha’aretz about “…desperation in Ramallah…” to ever-reliable hyperbole from PA spokesman that the new US position is “void, unacceptable and condemned”, to the more nuanced but nevertheless predictably anti-Israel Amnesty International’s Phillippe Nassif’s statement that the USA and Israel deemed themselves to be above the law.
After letting the dust settle, a rational and reasoned look at the facts revealed the actual legal position in international law which finally prompted a correction by the US Secretary of State which also took into account the interminable reiteration about “Israeli occupied Palestinian land”.
In 1948, there was no “Palestinian land”. There was an illegal annexation of Gaza by Egypt and Judea by Jordan.
In 1966, there was no “Palestinian land” when Egypt occupied Gaza and Jordan occupied Jewish Judea.
In 1967, there was “Palestinian land” when three massive Arab armies lost yet another full scale war against a tiny sovereign Jewish state and where in that same year, a furious Arab League meeting in Khartoum, Egypt voted for “no peace,” “no negotiations” and “no recognition” of Israel.
Also in 1967, Israel took back Gaza and Judea AND the Golan Heights after inflicting a crushing defeat on Egypt, Jordan and Syria whose illegal attacks ignored all prior legal conventions of the Hague and the Geneva conventions to again visit violence on the Jews.
In 1968, the world was introduced to the genus of ancient Palestinians after a discovery of this hitherto undiscovered and indigenous nation in the Levant was first mooted in in an Arab League summit in Egypt in 1964 by PLO leader Arafat in his new attempts to delegitimise the existence of the State of Israel.
In 1970, the world saw the first of the Arab PLO plane terrorjackings in the name of the ancient Palestinian people.
1973 saw the first Arab OPEC economic terror unleashed on America and the West in the name of the disenfranchised Palestinians longing for their ancient lands now occupied by Jews. The OPEC economic terror was aimed as retribution for, and a warning of more to come to, all those European countries supporting Israel.
Europe got the message.
In 1970, for example, after a spate of PLO attacks against Swiss interests including planejackings,, the Swiss government made a secret deal with Arafat for tacit recognition/support of the Palestine issue in its campaign through both terror and, later, lawfare, to rid the land of the ancient Palestinians from illegal occupation by Jews. To this end, the historical record will show that after 1970, PLO terror continued in Europe, but not in Switzerland.
In 1977, after intense political pressure by Arab States, Additional Protocols to the Geneva Conventions were attached. These Protocols now codified a hitherto non-existent notion that Israeli presence in Judea after a defensive war which it was forced to undertake, constituted a “grave breach” or a “war crime” and was illegal.
Continual condemnation of illegal Israeli occupation by the EU followed the self-serving paradigm pioneered by the Swiss, until today, in response to a generational propaganda campaign to brand Israeli presence in Judea as illegal for European demographic, economic and political reasons, the lie has become the truth of the willing and/or the critically under-read.
In the words of Isa Blagden, “If a lie is only printed often enough it becomes a quasi-truth and if such a truth is repeated often enough, it becomes an article, of belief, a dogma and men will die for it.”
The allegation of the illegality of Israel in Judea is that lie, for there exist only advisories or self-interested interpretations on articles of international law pertaining to occupation, but not a single article of international law showing any illegality in the presence of Israel in Judea, an area retaken by Israel in a defensive war where the occupiers of that territory previously were not a High Contracting Party (HCP).
In other words, Jordan was not considered by the international community as having attained legitimate sovereign rights over the areas of Judea and Samaria, following its 1950 unrecognized annexation of the areas. As such, from the legal point of view, since there existed no legitimate sovereign power, a unique situation existed in which the classic laws of occupation per the 4th Geneva Convention were not legally applicable.
And it is because there was no legal HCP in a territory illegally occupied by an invading Jordanian army, that the self-interested deceit of Western governments who erroneously repeat a mantra of a “belligerent occupation”, Israeli “illegality” in Area C, is exposed.
Specifically, the 1995 Israeli-Palestinian Interim Agreement on the so-called “West Bank” (Oslo II) endorsed by the U.N. agreed that, pending negotiation to determine the permanent status of the area, effective control of Area C where legal Israeli settlements are built, would be under Israeli civil AND military administration. This legal agreement and administration was termed a special legal ruling that overrode any other previously applicable legal framework that may have been applicable, including the Geneva Convention.
It should be stressed that under Article XXXI of Oslo II, signed by the sole representative of the Palestinian people, Yasser Arafat, permanent status negotiations were to include Jerusalem, Settlements and Borders. In other words it expressly acknowledged that existing Settlements were not to be illegal during the interim period, and that ultimate borders would be subject to negotiation. This only reinforces the description of Judea and Samaria as disputed territory which in turn highlights the fact that they are certainly not also “occupied illegally” in any sense.
In 1998, Jordan relinquished any and all claims to this territory and even placed this territory entirely within Israel’s borders in Jordan’s 1994 peace treaty with Israel.
Organisations like ICRC which charge Israel with “belligerent occupation” in Judea choose to ignore the legal history of the territory, choosing not to see history before 1967, or “…lasting legal connections that took place between 1920-1949.”
Pompeo’s statement did not change international law. It merely used those relevant articles of law to accurately state what had been obvious, but unsaid publicly, for 52 years: Israeli settlements are indeed not illegal and the narrative of deceit needed to be rectified.
The declared policy of the Trump administration not to refer to Israeli settlements in the so called “West Bank” (of Jordan, no less….) as illegal merely reflects a reading of international law by luminary experts in this field pre and post the Carter administration, and is a public step by a major influencer to redirect a skewed and false narrative towards its actual legal frame of reference and its basic moral underpinnings.
It is this correcting of a 52 year wrong that is behind the US declaration on the inadmissibility of terming Israeli settlements on “Palestinian land” illegal.
Today, because increasing numbers of Arab countries have tired of the tried-but-failed myth of “Palestinian land” and the tired fiction of Palestinianism, leading Arab thinkers are already calling for an end of boycotts and for even more Arab countries to engage with Israel.
In and of itself, that call is a sufficient (and particularly telling) indictment of the infamous Khartoum declaration 52 years ago and spotlights the always-defunct nature of the decision of the Arab League and their supplicant Western supporters using a mythical Palestinianism for differing self-interested reasons, merely as another strategy in the continuing 71 year Arab Israeli conflict.
The controversy about the legality of Jewish settlements in the “West Bank” is not, and has never been, therefore, about legal rights, but about Arab political will to override those rights.
As Ostroff (2011) put it, when all is said and done, the question of whether Israeli presence in Judea as an illegal occupier really needs to be clarified within the framework of the wilful propaganda misdirection that the territory Israel occupies was taken from the “Palestinians” in the first place; a view that prejudges territorial negotiations envisioned in 242 and Oslo II (as alluded to above) and which also provides the emotional excuse of “resisting occupation” through ongoing strategies like terrorism, boycotts, and anti-Israel lawfare.
In the end, the fact remains that Israeli settlements, while they may not be considered desirable by some, are certainly not in breach of any international law.