Jews building settlements in Judea and Samaria is legal

January 2, 2013
By Salomon Benzimra, author of the book: The Jewish People’s Rights to the Land of Israel (http://www.amazon.com/Jewish-Peoples-Rights-Israel-ebook/dp/B0065WZM14)

First and foremost, the first five pages of the Levy Report (“Legal Argument”) clearly summarizes why Israel is not an occupying power in Judea and Samaria – and East Jerusalem – and, therefore, why the settlements are not illegal. You can find the English version of these 5 pages here:

The following are the points on which this claim rests:

1. The legality of the “settlements” cannot be dissociated from the notion of “occupation.” As long as Israel is viewed as an “occupying power,” not only the “settlements” can be construed as illegal but the whole of Israel becomes “occupied territory” since there is no difference between land acquired or repossessed – a better term would be “liberated” – in 1967 and 1948-49 respectively.

2. The Fourth Hague Regulation of 1907 defines “occupation” in Article 43: it presupposes that “the authority of the legitimate power …passed into the hands of the occupant.” The annexation of Judea & Samaria (renamed in 1950 “The West Bank’) by Jordan has never been recognized as “legitimate.”


3. The San Remo Resolution (April 1920) integrated the Balfour Declaration(November 1917) to Article 22 of the Covenant of the League of Nations (June 1919) and resulted in the following:

3a: The provisions of the Balfour Declaration (i.e. the establishment of a Jewish National Home in Palestine) became binding upon Britain, which the Supreme Council of the Allied Powers selected as the Mandatory Power in the land.

3b. The establishment of a Jewish National Home in Palestine was no longer a mere a British foreign policy decision, but became an act of international law.

3c. Pursuant to the San Remo Resolution, in July 1922, the Mandate for Palestine was confirmed, approved by the 52 members of the League of Nations and entered into force in September 1923.

3d. No “special rights” were conferred to the Jewish people. The Supreme Council recognized a pre-existing rightby calling for the reconstitution of the Jewish National Home in Palestine – and not the “creation” – it being clearly understood that it would turn, in time, into a sovereign Jewish State, pending on an expected Jewish population majority.

4. Following the Churchill White Paper – the official British policy for Palestine – of June 1922, Britain separated the Transjordan part of Palestine – the land east of the Jordan River – and made it an exclusively Arab land where no organized Jewish settlement was allowed, as per the inserted Article 25 of the Mandate. However, in “western Palestine” – from the Jordan River to the Mediterranean Sea – all the provisions of the Jewish National Home were upheld, including the encouragement of Jewish settlement of all lands (as per Article 6).

5. When the League of Nations ceased to exist, in 1946, following the creation of its heir, the United Nations, the acquired rights of the Jewish people remained enshrined in the UN Charter (Article 80).

6. The UN General Assembly Resolution 181 recommended a further partition of the remaining “western Palestine” into a Jewish State and an ArabState. Had this recommendation been accepted by both parties, the terms of the Mandate would have been superseded. But that was not the case, due to the Arabs’ rejection of the Resolution. Besides, the recommendationformulated in UNGA Res. 181 violated the UN Charter (Article 80) and the terms of the Mandate, still in force in 1947, especially Article 5 which prohibited the cession of any territory of Palestine to a foreign power.

7. Since no agreement occurred in 1947 pertaining to a further partition of Palestine, and no other binding agreement has been entered into between Israel and the Arabs ever since, which might affect the Jewish sovereignty over western Palestine, the provisions of the Mandate still hold, and especially the title to the land, vested in the Jewish people and that includes Judea and Samaria.

8. Point #7 therefore refutes the notion of Israel being an “occupying power” in any part of western Palestine –From the River to the Sea – since one cannot occupy land on which it has legal title.

9. Because the State of Israel is not an “occupying power” in any part of western Palestine, it follows that the Fourth Geneva Convention does not apply.This is especially true for Article 49 which deals with transfer and deportation of populations to and from occupied territories, in addition to other legal aspects (the nature of the Contracting Parties, the non-forcible transfers, etc.), and the preposterous situation of ethnic cleansing, which the Arabs demand that would result in making Judea and Samaria judenrein.

Conclusion: The claim that it is illegal for Jews to build in Judea and Samaria and that Israel “occupies” the land is an utter lie, arises from deliberate ignorance, pandering to the Arab/Muslim world, anti-Semitism or all of the above combined.

Guest Comment:
Statement: International law, under which Judea and Samaria is part of the legal land of the state of Israel has become a political law and thus the world has come to believe that Israel has no claim to any land beyond the ‘Green Line’.

All the UN resolutions condemning Israel on the “settlements” are based on lies, totally ignoring international law that has become international political law.

It is just like admitting that the existence of the Palestinian Authority and its recent “promotion” in the UN is based on going AGAINST the UN charter, AGAINST the Montevideo Agreement on what determines a state to be, etc. It’s exactly the same.

The main problem is not the lack of pertinent international law, but rather the practical irrelevance of any such law in a world that still basks in ritualistic anti-Semitism. Europe, as the always-residual source of such hatred, will never support Israel, irrespective of authoritative international law. Hence, the core problem here is not jurisprudential, but geopolitical. This is a problem that must be solved by Israelis only.

In the meantime, Israel is NOT making its legal case for construction in Judea and Samaria and is not defending itself. As it stands now, if Israel continues to build beyond the ‘Green Line’, the European Union may even begin taking harsher punitive measures against it.  As long as the government of Israel does not promote the jurisprudence that the “settlements” in Judea and Samaria are legal, world pressure will continue and get even worse.

We need to push back! And we begin right here with the facts and truth. Every time we see anyone complaining about the illegality of the “settlements” in Judea and Samaria we send them the below explanation as our reply. The government of Israel needs to use this one page as well. Enough of the lies.

Below is a 9-point summary explaining why Jews building in Judea and Samaria is NOT illegal. One page with the facts that settlements in Judea and Samaria are NOT illegal to act as a tool to push back and defend Israel from the anti-Semites in Europe and beyond.

Nurit Greenger

If Only the Left Would Abandon Israel

May 27, 2012

(Ted Belman) Shaul Magid, professor of Jewish Studies at Indiana U, asks, “What if the Left Abandonned Israel?” and suggests that Israel would go to hell in a handbasket.  “Be careful what you wish for,” he warns.

For him, the left are “basically liberal-minded and believers in civil rights and the rights of the oppressed — at least in the abstract.”  He suggests that the “messianics and revisionists” of the right, on the other hand, aren’t.  Everyone believes in civil rights in the abstract.  It’s when you deal with reality other considerations and values come into place.

I also believe in the “rights of the oppressed,” but I differ with the left in that I see the Jews in Israel as the oppressed ones, not the Palestinians (at least, the Palestinians are not oppressed by the Jews).
We Israelis are oppressed by everyone, including the U.N., the State Department, the EU, and the Muslims, including the Palestinians.  We are oppressed by 60,000-plus rockets aimed at us by our immediate neighbors and by threats of annihilation.  And for what?  It’s either because we exist, which the left and the Arabs think is a crime, or because we are “occupiers,” which much of the world finds unconscionable.  They forget that UNSC Res. 242 authorized Israel to remain in occupation until she had recognized and secure borders.  They argue that the Fourth Geneva Convention applies, even though Israel is not occupying the land of another signatory to the treaty as provided therein.
But even if the Fourth Geneva Convention does apply, Israel’s primarily obligation is to treat the people occupied humanely.  In this regard, 95% of the Palestinians are totally governed by the Palestinian Authority.  Nowhere in the treaty does it say that the occupier must end the occupation.  In any event, the relationship between Israel and the Palestinian Authority is fully set out in the Oslo Accords or 1995.  There is no suggestion in it that Israel must end the occupation without a negotiated agreement.  So spare me the crocodile tears about the “occupation.”
The condemnation of Israel is based on the belief that the disputed territories are Palestinian.  How so?  They have never exercised sovereignty over said lands
The Arabs rejected the Partition Plan in 1948 that would have led to their sovereignty and invaded Israel instead.  For the next nineteen years the West Bank was under Jordanian control, and no one ever called for a Palestinian state.  In 1967, the Arabs were utterly defeated in a war they began.  As a result, the UNSC passed Res. 242, which does not require Israel to withdraw from all the territories. At the Khartoum Conference, the Arabs rejected Res. 242 and agreed on the three nos: no recognition, no negotiations, and no peace.  Arafat accepted Res. 242 because such acceptance was a precondition to entering the Oslo Accords, but he never agreed to its terms.  And now they reject negotiations.
Israel, on the other hand, can claim sovereignty over these lands, pursuant to the San Remo Resolution of 1919 and the Palestine Mandate of 1922 which granted the Jews  the right to reconstitute their homeland in Palestine and the right to close settlement of the land.  She can also claim sovereignty over these lands by virtue of a continuous presence in the land for 3,000 years, by virtue of 1,000 years of sovereignty, by virtue of acquiring the land in a defensive war, or by insisting that only the Jordan River would constitute secure borders.
Magid quotes Zachary Braiterman with approval:

I used to think that American Jews had the right and obligation to stake ideological claims in Israeli politics. I was wrong. I don’t have anything to say. Legalize outposts? Go ahead. Beat the hell out of Hamas or Hezbullah? I won’t object. Hit the Iranians? I hope you all know what you’re doing, because the mess is yours if you make it, and there is not a lot that the American Jewish community will be (able) to do if things go south. Desecrate mosques, uproot olive trees, beat up a Danish demonstrator, pass racist legislation, muzzle criticism, harass people at the airport?

Each one of these complaints shows a profound ignorance of the law or the context. Each one can be rebutted to the satisfaction of a fair minded person.

Historically, the Zionism of Braiterman was the norm. Even given the less-than-charitable things Ben-Gurion had to say about the Arabs and the ways in which Israel treated its Arab population during times of conflict, the Zionist mainstream was committed to a humanistic and liberal ethos, even as it failed in significant ways.

This is true, but why did it fail?  Because the Arabs would have none of it.  And that’s the point: why it is no longer the norm.  The Jewish left prefer to ignore the reality.  The Arabs are dedicated to destroying the Jewish state, in phases if necessary.  The charters of both Hamas and Fatah say so.  Sharia says so.  The incessant preaching of hatred says so.  The support for terrorism says so.  The unwillingness to compromise their maximalist demands says so.  Yet the left blame Israel for the lack of peace.

Megid complains:

The unspoken merger of the messianic and neo-revisionist right, coupled with the politicization of the haredi has given rise to an increasingly uncompromising ethnocentrism and, arguably, a redefined Zionism.

True enough.  But by characterizing the new Zionism as “ethnocentric,” Megid is opening up a can of worms.  He is embracing the canard that Zionism is racism.  He is arguing against the Jewish particular in favor of universalism or multiculturalism.  Those values might be appropriate for America, though I prefer the melting pot to multiculturalism.  In fact, so do most Americans and Europeans.  Multiculturalism has proven a failure, and its bitter fruits have yet to be realized in full.
Megid regrets that Israel was not able to “attain a balance necessary for its rightful place as a society among the nations of the free world.”  But why must Israel be like everyone else?  Why can’t it remain a pumpernickel in a store of white bread?  Besides, Israel is in the Middle East, which is not part of the free world.  The Arabs are barring Jews and Christians from Arab countries.  In Egypt and Nigeria and elsewhere, they are killing Christians and burning churches.  No multiculturalism for them.  No universalism for them, except when Islam dominates the world.
While the Jewish left embraces the Muslim Brotherhood at home and abroad — and, I believe to America’s detriment — Israel prefers to keep her distance from the forces which are bent on destroying her.  In order to defend herself, she must embrace her ethnicity, not eschew it.
I accept that many Jews who embraced the Zionism of their youth “understand quite well and are deeply informed — not only about the political realities but about the underlying history of the conflict.”  But so are the Jews who embrace the new Zionism.  The difference being that the former want Israel to be a state of all its citizens rather than a Jewish state.
The latter apparently is too Jewish for them.
In the end, it’s not about old and new Zionism, but rather about survival.  The left wants Israel to give in to the demands of the Arabs and the international community in order to survive, though history does not support this belief.  The right believes that doing so would lead to Israel’s destruction.  The right prefers peace through strength.

Anyone left in the left who isn’t dealing with these issues is in denial.