Collection of Posts on Legality of Jewish Residence in Judea and Samaria

Summary of posts on the subject:

One.

Two.

Three.

Four.

Five.

Enjoy.

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Are "Jewish (Re)Settlements" Legal?

Following the latest US policy decision on the Jewish civilian residency communities in Judea and Samaria of November 18, declared by Secretary of State Michael Pompeo, which reads:

Turning now to Israel, the Trump administration is reversing the Obama administration’s approach towards Israeli settlements.
U.S. public statements on settlement activities in the West Bank have been inconsistent over decades.  In 1978, the Carter administration categorically concluded that Israel’s establishment of civilian settlements was inconsistent with international law.  However, in 1981, President Reagan disagreed with that conclusion and stated that he didn’t believe that the settlements were inherently illegal.
Subsequent administrations recognized that unrestrained settlement activity could be an obstacle to peace, but they wisely and prudently recognized that dwelling on legal positions didn’t advance peace.  However, in December 2016, at the very end of the previous administration, Secretary Kerry changed decades of this careful, bipartisan approach by publicly reaffirming the supposed illegality of settlements.
After carefully studying all sides of the legal debate, this administration agrees with President Reagan.  The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.
I want to emphasize several important considerations.
First, look, we recognize that – as Israeli courts have – the legal conclusions relating to individual settlements must depend on an assessment of specific facts and circumstances on the ground.  Therefore, the United States Government is expressing no view on the legal status of any individual settlement.
The Israeli legal system affords an opportunity to challenge settlement activity and assess humanitarian considerations connected to it.  Israeli courts have confirmed the legality of certain settlement activities and has concluded that others cannot be legally sustained.
Second, we are not addressing or prejudging the ultimate status of the West Bank.  This is for the Israelis and the Palestinians to negotiate.  International law does not compel a particular outcome, nor create any legal obstacle to a negotiated resolution.
Third, the conclusion that we will no longer recognize Israeli settlements as per se inconsistent with international law is based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank.  Our decision today does not prejudice or decide legal conclusions regarding situations in any other parts of the world.
And finally – finally – calling the establishment of civilian settlements inconsistent with international law hasn’t worked.  It hasn’t advanced the cause of peace.
The hard truth is there will never be a judicial resolution to the conflict, and arguments about who is right and wrong as a matter of international law will not bring peace.  This is a complex political problem that can only be solved by negotiations between the Israelis and the Palestinians.
The United States remains deeply committed to helping facilitate peace, and I will do everything I can to help this cause.  The United States encourages the Israelis and the Palestinians to resolve the status of Israeli settlements in the West Bank in any final status negotiations.
And further, we encourage both sides to find a solution that promotes, protects the security and welfare of Palestinians and Israelis alike.

I add more to previous lists of opinions (here; and here;) supporting the full legality and legitimimacy of Jewish residency in Judea and Samaria:

Talia Einhorn.

Douglas Feith.

Observation of Amnon Lord.

Dore Gold.

Matthew Mainen.

Eugene Kontorovich.

UPDATE

Gill Troy.

Ken Cohen.


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Are Arab Communities Illegal?

As per the BBC

Israel has decided to make legal under Israeli law three settlement outposts in the West Bank, the prime minister's office has said in a statement.  It said that a ministerial committee had decided to "formalise the status" of Bruchin and Rechelim, in the north, and Sansana, near Hebron in the south.

I wouldn't term those communities "outposts" and I think Rechalim was made legal; already years ago. And as for Rechalim, I was there at its founding about a month after the terror incident (from which my wife was saved, being in another bus) on the eve of the Madrid Conference at the end of October 1991 when our neighbor here at Shiloh was murdered, Rachela Druck.
In any case, we have a response:

The Palestinian Authority strongly condemned the decision. "Every single settlement built on Palestinian land is illegal", Chief Negotiator, Saeb Erekat, told the BBC..."I don't want to get into a discussion about what the Israelis use as an excuse for what is legal and what is not," says Mr Erekat, who handed the letter to the Israeli Prime Minister. "The Israeli government must choose between peace and settlements. It cannot have both."

I wonder, according to his thinking, is every single Arab community built in Israel...illegal?  Are they "settlements"?

Where's the logic, if not?

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UPDATE

Foreign Secretary condemns Israel’s legalisation of illegal outposts
24 April 2012

Foreign Secretary William Hague comments on the news that the Israeli government has legalised three outposts in the West Bank.

Foreign Secretary William Hague said:

“I strongly condemn the Israeli government’s decision yesterday to turn three illegal outposts in the West Bank into settlements. I urged the Israeli government in my statement on 5 April to remove - not legalise - outposts across the West Bank. I fully appreciate the difficult political discussion within Israel such action would require. However, the official sanction being given by Israel, designating outposts as settlements for the first time in over 20 years, sets a dangerous precedent for other outposts, which are illegal under both international and Israeli law.

“By seeking to entrench illegal settlements in the West Bank, as this decision does, the Israeli government risks sending the message that it is not serious about its stated commitment to the goal of a two-state solution to the Israeli-Palestinian conflict. The United Kingdom, in common with all our European Union partners, urges the Israeli government to listen to Israel's international friends. The UK calls on the Israeli government to focus their efforts on a lasting resolution of the Arab-Israeli conflict, to which this further shift in settlement policy presents one more obstacle. I call on the Israeli government to rescind this decision."

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Let's Get Legal About Migron

From a legal opinion offered by Howard Grief on the Migron Affair:

...Under the prevailing rules of international law, as embodied in Articles 42, 52 and 55 of the 1907 Hague Regulations, Jordan, as the Occupying Power of Judea and Samaria, being lands that were earmarked for the Jewish National Home and State under the Balfour Declaration, San Remo Resolution, the Franco-British Boundary Convention of December 23, 1920 and the Mandate for Palestine, which Jordan had re-named the “West Bank”, had no legal authority to grant to its citizens or subjects parcels of land that did not legally belong to it... ...Since Jordan was only the administrator or usufructuary of Judea and Samaria, it was never the legal owner or sovereign of this land. Hence, King Hussein’s land grant to various of his subjects has no legal validity or basis in international law, in the law of Palestine during the Mandate period, nor in Israeli law today...Under these circumstances, it was incumbent on the Government and the Supreme Court to carry out a thorough inquiry to determine whether the deeds of ownership held by the Arab Petitioners, which they had received from Jordan, were indeed valid, a duty neither discharged or even considered. Moreover, it was wrong for the Government to rely only on the questionable and unproven findings of the Sasson Report for proof of ownership. The Petitioners themselves were obliged to prove their ownership to the satisfaction of the Government and the Court. Prior to King Hussein’s land grant in Judea and Samaria, the land where Migron is located was not privately owned...To repeat: Migron was therefore never “private Arab property”, a fact of immense importance in determining the legality of the settlement...It is true that ownership of land may eventually be acquired by prescription, unless interrupted by protest by the actual owner, through continuous possession of the land by squatters who originally had no right or title to the land. However, in the Migron case the alleged Arab owners never truly possessed the land in the sense required for prescription, since the land was never cultivated or farmed by them, but rather lay fallow or unploughed and was no more than unused vacant land until the Migron community was established in 1999...

Get them to a court. ^

US Trying to Catch Up to Israel

On the issue of "targeted killings".

Here:

U.S. to offer legal backing for "targeted killing": source

The Obama administration on Monday plans to outline how U.S. laws empower the government to kill Americans overseas who engage in terrorism against their home country, a source familiar with the matter said, months after a drone strike killed a U.S.-born cleric who plotted attacks from Yemen.

...U.S. Attorney General Eric Holder plans to address the issue and the underpinning legal principles for using lethal force during remarks at Northwestern University School of Law on Monday afternoon in Chicago, the source said Sunday on condition of anonymity.

...U.S. officials have refused to talk much publicly about the program...The speech will be the latest attempt by the administration to address the issue, an unusual break from past precedent of eschewing virtually any discussion about the top-secret program.

Defense Department lawyer Jeh Johnson last month referred to the so-called "targeted kill" program, saying that it pursued legitimate military targets overseas and rejected suggestions that the United States was engaged in assassination.

Finally, some support for all the specuious attacks on Israeli "illegality".

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To Whom the Political Rights

Eli Hertz reminds us:

The mandate implicitly denies Arab claims to national political rights in the area in favor of the Jews; the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to the land. Lord Curzon, who was then the British Foreign Minister, made this reading of the mandate explicit. There remains simply the theory that the Arab inhabitants of the West Bank and the Gaza Strip have an inherent 'natural law' claim to the area."

And as I have repeated here many times:

The Mandate for Palestine, a legally binding document under international law, clearly differentiates between political rights - referring to Jewish self-determination as an emerging polity - and civil and religious rights, referring to guarantees of equal personal freedoms to non-Jewish residents as individuals and within select communities. Not once are Arabs as a people mentioned in the Mandate for Palestine. At no point in the entire document is there any granting of political rights to non-Jewish entities (i.e., Arabs).

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See Eugene V. Rostow, The Future of Palestine, Institute for National Strategic Studies, November 1993. Professor Rostow was Sterling Professor of Law and Public Affairs Emeritus at Yale University and served as the Dean of Yale Law School (1955-66); Distinguished Research Professor of Law and Diplomacy, National Defense University; Adjunct Fellow, American Enterprise Institute. In 1967, as U.S. Under-Secretary of State for Political Affairs, he became a key draftee of UN Resolution 242. See also his article: "Are Israel's Settlements Legal?" The New Republic, October 21, 1991.

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US State Dep't Declines to Term "Settlements" As "Illegal"

Read Victoria Nuland's reply - she's the Spokesperson at the State Department Daily Press Briefings - to the question:

December 21, 2011

TRANSCRIPT:
12:52 p.m. EST

...QUESTION: Yes, Toria. Yesterday, the four members of the European Union on the Security Council issued a statement calling occupied territories and settlements in the occupied territories and East Jerusalem as illegal under international law. Do you concur?

MS. NULAND: Said, as you know, we declined to join that statement for all of the usual reasons. It doesn’t change the fact that our longstanding policy remains that we don’t recognize the legitimacy of the continued Israeli settlements, but we don’t think statements in the UNSC are the way to pursue the goal of getting these parties back to the table. The best way to deal with this issue of land, settlement, et cetera, is for these parties to talk
to each other, come up with borders, and then have two states living side by side in agreed borders.

Take note:

a) she doesn't employ "illegal";

b) she refers in the context to "continued", not previous/existing;

c) size of land Israel is to retain is still an open question for the agenda.

Jewish residency communities in Judea and Samaria are not "illegal" but very much in line with the diplomatic, legal and historical development of the Jewish reconstitution of its National Home in what was termed Palestine.

Only negotiations and a final peace treaty can define what the borders will be.

Thank you, Ms. Nuland.

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Perry - "Settlements" Legal

On CNN via progressive website:

Republican Presidential hopeful Texas Gov. Rick Perry broke with more than 40 years of bipartisan U.S. policy and issued a statement of blanket support for Israeli settlements in the Occupied Palestinian Territories...

CNN’s Wolf Blitzer asked Perry:

Since ’67, every U.S. president, Democrat and Republican, have called Israeli settlement activity in the occupied territories, in the West Bank, illegal under international law. Would you continue that activity?

PERRY: …No I wouldn’t. I consider the Israeli settlements to be legal, from my perspective, and I support them.

BLITZER: Even if they’re in the West Bank?

PERRY: Where there is arrangements that have been made, where the Israeli’s are clearly on Israel’s land that they have hard fought to win and to keep, absolutely.

...Blitzer also asked if Perry would move the U.S. embassy in Israel, which is currently located in Tel Aviv, to Jerusalem. “Absolutely,” replied Perry. “As soon as I could. I would clearly say, if you want to work for the State Department of the United States, you need to be packing your bags and move to Jerusalem as soon as you can.”

As I pointed out, in 1997, Secretary of State Madeleine Albright already stated the Jewish communities are legal in an interview with Matt Lauer on NBC’s "The Today Show" on October 1, 1997, and asked in relation to building in Yesha and said: “I wasn't happy…I felt that going forward with those kinds of buildings was not helpful. Mr. Lauer pressed her and stated: “ It's legal. “, and Albright admitted: “It's legal.”

And following that, let's note this:

WHEN SETTLERS AREN'T SETTLERS

1. State Department, September 17, 1997

Spokesman:
The United States has been in contact with the Israeli government with regard to the Ras al-Amud housing project. The move of settlers into this project [formerly an entirely Palestinian neighborhood in East Jerusalem] is not helpful...We don't think this is a question of law...Remember, this is about property rights, people purchasing property and then trying to build on that property, dealing with local governments, dealing with national governments. It's really an Israeli internal matter; that's precisely why I said we weren't in a position to micromanage it.

2. State Department, September 18, 1997

Spokesman:

. . . We have been working most closely with the Israeli Government to try to get an outcome [at Ras al-Amud] as close to our view as possible. We are pleased to the extent that the settlers are out, but we hope and expect that nothing will happen in the days and weeks ahead that will have the effect of reversing the status quo.

Question:
Are they settlers to the U.S. Government? You consider them settlers? You used the word settlers. I'm giving you a chance to say whether you meant what you said.

Spokesman:
Settlers in a housing project, yes.

Question:
You know what settlers means in Middle East vocabulary--were they settlers or are they just simply Jews moving into new homes?

Spokesman:
Do you think it would be a good idea for you to take more or less days off?

Question:
Look, Jamie, half the press calls them settlers, and the other half doesn't.

Spokesman:
All right. People can settle in housing projects.

Question:
Are these people settlers?

Spokesman:
The people who are in the--we do not regard this, as you know, the word that I'm not going to use.

Question:
I'm just asking you to define your terms, because it's a tricky but very significant distinction.

Spokesman:
I agree, and I did not use the word that would have made it a problem.

3. State Department, September 19, 1997

Question:
The Secretary, when she was in the area, talked a lot about the importance of not taking, as you said, unilateral actions that create facts on the ground. Do you consider that [the Israeli "compromise" on Ras al-Amud] putting these students now, instead of the families, creating new facts on the ground, that makes resuming the negotiations harder?

Spokesman:
I think I've said very clearly, and I'll repeat for you, that we have received assurances that there will not be a new status quo. The character of the neighborhood will not change. Therefore, we believe that the main element, the essential element that this situation could have created, has been alleviated, if the assurances are followed through on.

So, no, we don't think that the fact that there are teams of caretakers who are not going to live there, and construction is not going to be occurring there, and the neighborhood is not going to change is the kind of significant unilateral act that we were calling for both sides to avoid.

4. ON THE NATURAL GROWTH OF SETTLEMENTS

Djerejian:
There is some allowance for--I wouldn't use the word "expansion" but certainly continuing some activity--construction activities in existing settlements. . . . And that's basically in terms of natural growth and basic, immediate needs in those settlements. I want to get away from the word "expansion" per se.

5. Testimony by Assistant Secretary of State for Near
Eastern and South Asian Affairs Edward Djerejian on March 9, 1993 before the Subcommittee on Europe and the Middle East of the House Foreign Affairs Committee

State Department, October 1, 1997

Question:
...in her Today Show interview this morning, the Secretary was asked if the settlements are legal. And she said, quote "they are legal" unquote. Was she talking about legal within the context of Israeli law? Or was she talking about international law, specifically the Fourth Geneva Convention?

Spokesman:
No, she was not talking about international law. Our overall position on the question of the legality of settlements remains the same. We are, of course, not taking a legal position on that overall issue. . . . The fact of the matter is that there is nothing in the interim agreement, as such, and under Oslo, that prohibits settlement activity. We do not support the settlement activity. We think it is unhelpful and counterproductive. But as a technical answer, though, the statement was technically correct.

6. State Department, October 2, 1997

Question:
. . . If Oslo does not prohibit something, does it make it legal? Is this the basis for the legality of this?

Spokesman:
Our position has always been that we believe that settlement activity is a complicating factor in our efforts to promote a negotiated settlement of the Israeli-Palestinian conflict and dispute, and that view has not changed. We think settlements are counterproductive, they are unhelpful, and that has not changed.

7. State Department, October 3, 1997

Question:
So there has not been any change in U.S. policy towards settlements since the '70s, since the Carter days?

Spokesman:
Well, I don't want to get caught on that. I mean, all I can say is the Secretary of State in that interview was not intending to make any new statements about the grand legal judgment of the settlements in the Middle East. I think we have exhausted that completely.

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Israel's Legal Rights and International Legitimacy

View this video.

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Are "Settlements" Legal?

Of course, there is nothing more normal, more moral, more right, more correct, mosre just, more legitimate and more legal than Jews residing in their national homeland.

And if you have any doubts, or think this is a cynical exercise in propaganda, start reading:

http://myrightword.blogspot.com/2010/11/yes-no.html

http://myrightword.blogspot.com/2011/06/illegitimate-illegitimacy.html

http://myrightword.blogspot.com/2009/06/shmuel-katz-2001.html

http://myrightword.blogspot.com/2010/03/legal-ilegal-legal.html

http://myrightword.blogspot.com/2009/11/that-anglo-american-convention-of-1924.html

and:-

Eugene V. Rostow: "Resolved: Are the Settlements Legal?" New Republic, October, 1991
http://www.tzemachdovid.org/Facts/islegal1.shtml

CAMERA.ORG: "Jewish Settlements and the Media", by Ricki Hollander, October, 2001
http://www.camera.org/index.asp?x_article=259&x_context=2

Joseph Farah: "The 'Settlements' Issue", 2002
http://www.sullivan-county.com/id4/farah1.htm

Jeffrey Helmreich: "Diplomatic and legal Aspects of the Settlement issue", January, 2003
http://www.jcpa.org/brief/brief2-16.htm

Julius Stone: "Israel and Palestine - Assault on the Law of Nations". Excerpts edited by Ian Lacey, 2003
http://www.strateias.org/international_law.pdf

Yoram Shifftan: "Israeli Complicity in the Delegitimization of the Settlements", September 2004
http://www.middleeastfacts.com/guests/shifftan_17may05a.php

David Meir-Levi: "Occupation and Settlememt: The Myth and Reality", June, 2005
http://archive.frontpagemag.com/readArticle.aspx?ARTID=8158

Moshe Dann against Akiva Eldar: "The War over Israel's Settlements", Spring 2009
http://www.meforum.org/2140/lords-of-the-land#_ftnref3

Gerald M. Adler: "Preserving a legal inheritance: settlement rights in the 'Occupied Palestinian Territories'" September, 2009
http://www.journalonline.co.uk/Extras/1007008.aspx

David Phillips: The Illegal-Settlement Myth, December 2009
http://www.commentarymagazine.com/article/the-illegal-settlements-myth/

Alan Baker: "The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords" , January, 2011:
http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DRIT=1&DBID=1&LNGID=1&TMID=111&FID=378&PID=0&IID=5603&TTL=The_Settlements_Issue:_Distorting_the_Geneva_Convention_and_the_Oslo_Accords

David Matas: "The Settlements: Dismantlement or Deconstruction", June 2011
http://www.jewishtribune.ca/TribuneV2/201011033654/index.php?option=com_content&task=view&id=4430&Itemid=53

Israeli Foreign Ministry: "Israel's use of land for settlements conforms to all rules and norms of international law." (undated)
http://www.aish.com/jewishissues/middleeast/Are_Israeli_Settlements_Legal$.asp

and

this resource.

And I'll be adding more.

One more.

And another.

The 1000 jurists' petition.


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