Saturday, March 13, 2010

A Modern Canterbury to Judea and Samaria Tale

The campaign to create an irrefutable fact, that locations of Jewish residency in Judea and Samaria are “illegal Israeli colonies” and that “settlements are in violation of international humanitarian law”, is a powerful instrument in the hands of Arabs who seek to create an unanswerable case. Or supposedly unanswerable. The truth is that no Jewish community in Judea, Samaria or even Gaza can ever be considered as “illegal”.

Persons who wish to become friends of the communities of Jewish revenancy are threatened. They are told that they are expected to uphold laws to which their countries are signatory. They are informed that they are endorsing violations of international law. One claim I saw read “you are supporting an illegal colony that is being built on the land of Palestinians who have been chased from their lands”. And the clincher is that “in 2004, the International Court of Justice unanimously found that Israeli settlements in the occupied Palestinian territory breached Article 49 of the Fourth Geneva Convention”. Based on this, the recipients of this message are urged “to withdraw support of this inhumane, illegal project”.

And I just saw this:

The archbishop of Canterbury has waded into the row over Israeli plans to build hundreds of homes on occupied territory, saying the proposals left him feeling "baffled and angry". Rowan Williams told an audience in London that although he believed the Israeli state had a right to exist, he had yet to hear a legal defence of settlement construction. All settlements on occupied territory are illegal under international law.

At the event, sponsored by the Jewish Chronicle to celebrate the 250th anniversary of the Board of Deputies, he said: "The state of Israel is a legitimate state. It has a right to exist and right to defend itself. The very fact that Israel makes so much of its status as a democratic state leaves me baffled and sometimes angry at what seems like collusion with unauthorised parties. I want to hear a legal defence of settlements and I am yet to hear it."

The "unauthorised parties" he referred to were settler groups, religious nationalists who believe they have a right to live in the ancient biblical area of Israel. The archbishop is said to be concerned at the way people are "acting on their own behalf and beyond the law".

...Williams said: "Unless there is a way of representing the settlements as legitimate self-defence I remain very disturbed about that, along with many."

Well, books have been written on the subject as well as essays and articles. My blog has many.

But let me be rather concise and short. Most responses are based, correctly so, on the following:

a) All the area between the sea and the river was to become the reconstituted Jewish national homeland by decision of the highest international legal body, the League of Nations, in 1923 following the Balfour Declaration 1917 and the San Remo Conference in 1920, the texts of which were incorporated in that decision to award Great Britain the Mandate over Palestine. Not to be forgotten is that TransJordan, the territory that became the Hashemite Kingdom of Jordan, was included within the original geographical area that was to become the “reconstituted Jewish national home”.

b) None of the compromises, arrangements or even actual partitions offered the Arabs, including restrictions on Jewish immigration and land purchases, until 1947 were ever accepted. In essence, the unwillingness of the Arabs agree to any political solution have only themselves to blame for the situation that developed, and even more so ever since 1920 when they adopted the path of violence and bloodshed.

c) Many simply do not pay attention to a very simple fact: in creating the Mandate, political exclusivity was granted only to the Jews, it being assume that Arab political rights would be fulfilled in the other states existing and Mandates. The key phrase, often overlooked or not even known, as I found out when addressing Muslim university students from California, is “nothing shall be done which should prejudice the civil and religious rights of Christian and all other non-Jewish communities in Palestine”.

Non-Jews were not at all to be discriminated against except that the state that was intended to be established was unabashedly deigned, by non-Jews, to be Jewish. The intrinsic political concept of this new state to be nurtured was that it was to be Jewish of character. Non-Jews had but civil and religious rights guaranteed – but within a Jewish state.

d) In the United States, the true bastion of overwhelming support for Israel, many do not know that Congress adopted a resolution supporting the Balfour Declaration and the League of Nations Mandate. On June 30, 1922, a joint resolution of both Houses of Congress of the United States unanimously endorsed the "Mandate for Palestine," confirming the irrevocable right of Jews to settle in the area of the Mandate and on September 21, 1922, President Warren G. Harding signed that resolution of approval.

e) The US signed a covenant treaty with Great Britain committing itself to the idea of a Jewish national home in Judea and Samaria in 1924. It’s official title is The Anglo American Treaty of 1924, 44 Stat. 2184; Treaty Series 728. While the Mandate itself ceased to exist on May 15, 1948, it is quite worthwhile to review exactly what was the American attitude toward the subject of Jews returning to their homeland and establishing a presence there.

In Article 1, the United States consented to the British administration of Palestine by His Britannic Majesty, pursuant to the terms of the League of Nations. But moreover, the United States established a special status for its own citizens there. Article 2 reads “The United States and its nationals shall have and enjoy all the rights and benefits secured under the terms of the mandate to members of the League of Nations and their nationals.” Further, Article 5 states that “Subject to the provisions of any local laws for the maintenance of public order and public morals, the nationals of the United States will be permitted freely to establish and maintain educational, philanthropic and religious institutions and the mandated territory, to receive voluntary applicants to teach in the English language.” American citizens, then, surely had their rights recognized in a unique fashion and rather than harming those rights, US Presidents should be going out there way to assure them, whether in east Jerusalem neighborhoods or in Judea and Samaria, and hopefully, once again in Gaza.

f) As regards the ruling of the International Court of Justice (ICJ), what we have is a legal sleight-of-paper. It first, unilaterally declared that Israel is an "occupying power". As such, it follows, in a perverse sense, for the justices that somehow a Fourth Geneva Convention article applies. However, not only is Israel not an "occupying power" but a reverted sovereignty power as Professor Yehuda Blum and others have established, but Israel has never employed "deportation" and "forced transfer" of its own population.

Back in 1980, Professor I. Stone commented on Article 49 of the Geneva Convention that "Jordan never had nor now has any legal title in the West Bank, nor does any other state even claim such title. Article 49 seems thus simply not applicable. Professor Eugene Rostow also concluded that the Convention is not applicable, noting that "How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained."

But I have one more argument on this matter.

g) The Jews were not only historically connected to the Land of Israel in a Biblical sense, something frowned upon, ignored and demeaned, as if it has no value (and if true, then surely cancels out any “Canaanite claim” put forward by Arabs), but lived in Judea, Samaria and Gaza throughout the Mandate period. To the extent that they did not was for two reasons: the British authorities intervened, illegally, to stop such residency and the Arabs engaged in an illegal ethnic cleansing move.

Jews lived in Hebron, in Shchem, in Jenin, in Gaza, in Atarot, Neveh Yaakov, Bet HaAravah, Kfar Etzion, Revadim, Masu’ot Yitzhak and Ein Tzurim as well as Silwan and Jerusalem’s Jewish and Muslim Quarters until Arab rioters forced them out, killing hundreds of Jews in the process. In successive waves, in 1929, 1936-39 and 1947-1948, Arabs, as individuals, in mobs, gangs or irregular military formations, killed Jews who lived in Jewish communities throughout the area that for a short 19-year period, out of some 3000 years, became forcibly emptied of its Jewish population.

The Fourth Geneva Convention cannot apply to this situation for the intention of that document was to protect one state or other political entity from an invasion, even if by non-military means. But this is not our case.

Jews were dwelling throughout Judea and Samaria not only for many centuries either as an independent commonwealth or kingdom or as a community under foreign rule and occupation but as quite recent inhabitants who suffered illegal acts of violent ethnic cleansing. Many Arabs invaded the Mandate of Palestine from neighboring countries.

The true “occupiers” of ‘Palestine’ are the Arabs. It is they who need contend with the label of illegality.

1 comment:

Anonymous said...

In an effort to explain in a concise and neutral way why settlements are contentious, BBC journalists often use the formula: "settlement of occupied territory is illegal under international law." This is set out at the end of Article 49 of the Fourth Geneva Convention.

Israel argues that the West Bank cannot be seen as "occupied territory", because it had previously been "illegally" annexed by Jordan. There is no other country, as far as I know, that does not view the West Bank as occupied territory.

[Aaron Barak] said there was a clear legal standard. "Those settlements which have a security rationale are legal. Those settlements that have no security rationale are illegal. Point."

Listening to all this, in the audience, was Yisrael Harel, the former chairman of the Settlers' Council. He is a man who disputes the idea that the West Bank is occupied territory and who strongly believes in Israel's ideological claim to the land.

But Mr Harel told me that this legal reading should bolster the legal status of every settlement. "Historically, all the times we've been in conflict, each settlement has a security value." He conceded that the army also needs to protect the settlers. "But life, where there are settlements, is more calm."