Jewish Rights In Judea and Samaria

A concise summary of Israeli civilian right of presence and settlement in Judea and Samaria:

...[for those who accept] uncritically the Palestinians’ claim that Israeli settlement activity following the 1967 occupation is contrary to international law and is therefore illegal. The claim is rooted in article 49(6) of Geneva IV: ”The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The objective of paragraph (6) was to prevent a practice adopted by Germany during the Second World War of the involuntary transfer of portions of its own population to occupied territory for political and racial reasons. Legal scholars disagree with the allegation that this provision was ever intended to mean a voluntary, non-coercive movement of a civilian population. The provision therefore does not provide the solid foundation which the Palestinian position claims.

Notwithstanding article 49(6), Israel has an independent legal claim to occupy, and settle in, the West Bank Territory, which can be traced through a number of international legal instruments, the most significant of which are:

(i) League of Nations Covenant 1920 formed part of the peace treaty negotiations following the conclusion of World War I. Article 22 deployed the Roman-Dutch legal concept of “mandate”, similar to the equity concept of a trust. It was anticipated that the mandate for a territory would reflect the stage of the development of the people, its geographical situation, economic conditions and other similar circumstances.

(ii) San Remo Resolutions 1920 continued the peace negotiations in respect of the disposition of the territories formerly held under Ottoman control. Purporting to act in accordance with article 22 of the Covenant, the Principal Allied Powers concluded, inter alia:

Syria and Mesopotamia (Iraq) should be provisionally recognised as independent states, subject to the rendering of administrative advice and assistance by a Mandatory Power until such time as they might be able to stand alone; and separately, Palestine was to be entrusted to a Mandatory Power, yet to be selected, that would be “responsible for putting into effect the [Balfour] declaration originally made on November [2] 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people”.

Both Britain and the Allied Powers were cognisant of the fact that the Zionist Jews hoped that the homeland in Palestine would ultimately develop politically as an independent Jewish state. The Arab leadership on the other hand was divided on the matter at best, and opposed to it at worst. Consequently, the language expressed in the Declaration, and included in the Resolution quoted above, continued:

“it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country” (emphasis added).

Significant by its absence is the word “political” from the rights of the communities which were not to be prejudiced by the establishment of the Jewish homeland. Furthermore, these communities were not referred to as Arab but as “non-Jewish” religious (rather than ethnic) communities. This differentiation became even more apparent in the terms of the actual Mandate.

(iii) Treaty of Sèvres, 1920 gave expression to the San Remo Resolutions in the peace agreement concluded between the Allied Powers and the Government of Turkey then in power. Inter alia, it provided for the dissolution of the former Ottoman Empire, with Turkey ceding all rights of sovereignty over North Africa and Arab Asia. (This waiver was subsequently confirmed in the Treaty of Lausanne 1923, which replaced the unratified Treaty of Sèvres.) The Allied Powers’ dissolution and the politically artificial delineation of Middle Eastern territory laid the foundations of the present conflict between Jews and Arabs and between Israel and the Palestinians.

Thus there is a clear link between the act of renunciation of Turkish sovereignty over Palestine and its transfer to Britain – under the Mandate designed for putting into effect the establishment of a Jewish homeland, as expressed in the Balfour Declaration and the San Remo Resolutions.

(iv) Palestine Mandate, 1922 reiterates in its preamble the policy declared in the Balfour Declaration and acknowledges the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home there.

Article 6 of the Mandate imposes a positive obligation on the British Mandatory “to facilitate Jewish immigration under suitable conditions and shall encourage… close settlement by Jews on the land, including State lands and waste lands not required for public purposes”.

The obligation to facilitate Jewish immigration is supported by the provisions of article 7, which impose on the Mandatory a duty to enact a nationality law, “and to include therein provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine”.

The terms “Palestinian” and “Palestine” at this period (1922) were applied solely to Jews and their ancient homeland. Yasser Arafat’s "creation" of a separate "Palestinian" people out of the South Syrians (as they were known under Ottoman rule) did not occur until 1964.

While article 6 implies that Jews were to be allowed to settle anywhere in the mandated territory, article 25 empowered the Mandatory “to withhold the application of… such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions”.

This provision enabled the Mandatory Administration to confine the establishment of the Jewish homeland to territory lying Cis-Jordan, while giving Arab-Palestinians and others the right of settlement and land acquisition in Trans-Jordan and excluding the Jews therefrom.

That the drafters of the Mandate contemplated the realisation of a Jewish majority in Cis-Jordan is supported by the recognition of the Jewish Agency in articles 4 and 11 as an active partner with the Mandatory Government in the stimulating of Jewish immigration and development of Palestine. By contrast, the presence in the mandate instrument of language protective of Arab and other non-Jewish interests appearing in the preamble, article 6, and particularly in article 9, would have been superfluous if the drafters had envisaged an eventual Arab sovereignty over a Jewish minority.

(v) UN Charter Article 80
This article provides in part: “Nothing in this Chapter [dealing with the establishment of Trusteeships and Trustee Agreements] shall be construed in or of itself to alter in any manner the rights whatsoever of… any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”

Mandates approved by the League did not, upon the League’s dissolution, fall automatically within the new Trustee system established under the UN Charter. Until a Trustee agreement concluded in accordance with article 77 replaces it, a Mandate and the rights of the beneficiaries under it remain intact. To the best of the author’s knowledge no such agreement in relation to Palestine was ever prepared in accordance with this Chapter, nor was one even considered. While Britain may have surrendered her obligations as Mandatory-Trustee in 1948, the Mandate itself did not lapse.

The Mandate has never been formally amended or repealed – nor can it be “wound up” so long as the beneficiary and an undistributed part of the corpus of the trust continue to exist. The Jewish people, as beneficiary, now represented by the state of Israel, appropriated part of the trust corpus lying to the west of the River Jordan, following the surrender by Britain of its obligations as Mandatory trustee in 1948 after the withdrawal of British troops. The legal right of sovereignty over that unappropriated portion of the West Bank formerly held under Jordanian control remains in abeyance and the right thereto is in dispute. Until this issue is resolved, the Jewish people still have a legal right of settlement in that territory.

(vi) UN General Assembly Resolution 181, which recommended a two-state partition of the West Bank, did not change the legal situation, having no dispositive effect and having been rejected by the Arab states. (It also contemplated that each nationality would have "expatriate" communities living within the other nationality's state, with rights of residence but not of citizenship.)

(vii) Israeli-Jordanian Armistice Agreement, April 1949
The inability of the UN to enforce UNGA Resolution 181 induced five Arab armies to launch a full scale war against the nascent state of Israel on the day immediately following the British withdrawal from Palestine. In the process, Egypt occupied the Gaza strip and Jordan occupied part of the land on the West Bank designated in UNGA 181 for the Palestinian-Arab state. Although under the proposed plan of partition Jerusalem was to be internationally governed under the auspices of the United Nations, Jordan also took control of Eastern Jerusalem, from which a large Jewish population was ejected, creating a Jewish refugee crisis to which little reference is ever made. Israel nevertheless succeeded in retaining the western part of the city.

A ceasefire between the belligerents was achieved by the United Nations and given legal effect in the respective Armistice Agreements.

As mentioned in Part 3(c) above ("The Fence and the Green Line"), articles II(2) and IV(2) of the Israeli-Jordanian Armistice Agreement make it quite clear that none of the Agreement’s terms has any impact on the ultimate question of sovereignty over the disputed area, and that the Green Line was specifically excluded from having any political significance. Israel’s legal claim to settle in the West Bank remains unchanged from that which prevailed before 1948 or afterwards.

Thus, Israel is perfectly entitled, as a matter of law, to permit the voluntary settlement of her population beyond the Green Line...


by Professor Gerald M Adler, LLM, JSD (Yale) qualified as a barrister in Canada (Ontario), an advocate in Israel, and a solicitor in England & Wales. He taught law at the University of Western Ontario and the Israel Institute of Technology, Haifa. Inter alia, he also served as senior assistant to the Israeli Attorney General and as the Chief Legal Advisor to the Israel Electric Corp Ltd. Now retired from active practice, Dr Adler has spent the last five years researching “Legal Aspects of the Arab-Israel Conflict Within a Historical and Political Context”, part of which can be accessed on the internet.

Illegitimate, Obama Says?

So, Obama says Jewish civilian residential communities in Judea and Samaria are illegitimate?

Israel hastens to destroy outposts, extentions, expansions, etc.

Well Aviad Visoli, Attorney, thinks and says otherwise:

Enforcing the Law in the Outposts? Fraud, Ignorance, Ethnic Discrimination,
and Governmental Corruption

The impassioned attack by the extreme Left against the residents of the Jewish outposts in Judea and Samaria, under the guise of the obligation to uphold the Rule of Law and maintain an orderly society, is a foul mixture of blurring the facts, legal ignorance, selective enforcement of the law, ethnically based discrimination, and the worst kind of abuse of governmental power, by means of abuse of the power of the Supreme Court, the Israel Defense Force, and the Police, for political means.

Fraud and Deception

In the Jewish sector of Judea and Samaria there are some 3,000 buildings in the midst of some manner of legal proceedings regarding illegalities violating Building & Planning regulations. Amongst those, there are tens of open cases regarding illegal construction in outposts. In relation to the population of 300,000 residents, a figure of 1% lawbreakers per 1000 residents. This can be compared to 10,000 illegal units just in the Arab Sector C, out of a population of 60,000 Arabs living in Sector C, or a ratio of 18% lawbreakers. That is to say, 18 times greater percentage of lawbreakers than amongst the settler population!

The State Comptroller, in his most recent annual report, dating from the beginning of May 2009, states that in the State of Israel there are 100,000 illegal buildings, a ratio of 1.5% per 1000 residents, two thirds of them in the Bedouin sector in the Negev. The number of illegal buildings in the sector has doubled since 2002. The State Comptroller's report quotes a statement by a senior member of the Department of the Interior, relating to the Building & Planning law: "the area of the Carmel is already out of control, and we are on the verge of collapse in the Wadi Ara area as well." (Building Criminals Flourish, and the State is Helpless, The Marker, 22.5.09)

In the Jewish sector in Judea and Samaria the level of law enforcement is much higher than within the Green Line, and even more so than in the Negev and the Galilee. Enforcing the law fairly, in this case, means that for every building that is destroyed in an outpost, 18 buildings would be destroyed in the Arab sector of Judea and Samaria, and 60 buildings within the Green Line.

Legal Ignorance

All the outposts in Judea and Samaria were founded, and have been continuously situated where they are, for between 2-10 years or more. One of the claims against the settlers is that they invaded the land without clear title, where Palestinians claim ownership. Since the settlers have occupied the land for far more than 30 days, there is a de facto presumption of ownership, and the only way to abrogate that presumption is in a civilian court of law. That is the precise decision of the Supreme Court in the "Peace House" case:

The 3rd section of the law regulating the removal of invaders requires the fulfillment of three conditions necessary to create the right to take the law into one's own hands to regain property from which one has been expelled: full legal rights to the property, illegal possession by the invader, and taking the law into one's own hands within 30 days of the day of the invasion... Considerations of the public good stand behind the principle that disagreements regarding rights of possession are to be resolved within the court system, and not by force between the disputing parties. Ruling on fundamental rights of ownership between parties ... through agreed upon mediators in the civilian judicial system ... where the right of ownership has not been decided, the law does not allow for one side to unilaterally seize property without the other sides' agreement. The right to the preservation of property supersedes the argument over fundamental rights, and until a decision is reached in the proper court, it is forbidden to change the status by forcibly removing the possessor from his holding. "

Another claim leveled against the civilian settlers is the construction of buildings without building permits. The Planning and Construction Law (1965) defines all the legal requirements involved with acquiring building permits and the (criminal) sanctions for building without a permit.

The Knesset established the equality of law which applies to citizens of the State of Israel on both sides of the Green Line in the Law for the Extension of the Emergency Measures (Judea, Samaria, and Gaza- Criminal Jurisprudence and Legal Aid) 1977. It is this law which enables Israeli citizens who commit crimes in Judea and Samaria to be brought to trial.

All the laws of Israel have been applied to Israeli citizens in Judea and Samaria- with the exception of the law of Planning and Construction. In the area of Judea and Samaria, in gross violation of the law, the State conducts all legal enforcement processes regarding Planning and Construction with administrative orders and through governmental supervisory and planning commissions, and not through the court system. The result is that while within the Green Line 100,000 final legal demolition orders have been issued due to building irregularities, in Judea and Samaria not a single legal demolition order has been issued.

Using administrative steps in place of legal measure discriminates against settlers on the one hand, and at the same time precludes charging them with criminal charges due to building violations. It is meaningless to speak of building violations in outposts as long as the State refuses to turn to the courts to obtain demolition orders. Administrative punishment of this type violates international legal covenants on which the State of Israel is a signatory, as well as international law which declares that all citizens are equal in the eyes of the law.

In the name of the principle of equality before the law- a basic principle of Israeli and international law- violations of building regulations in Judea and Samaria must be treated the same way they are within the Green Line, and to allow residents of the outposts to defend themselves against demolition orders due to suspicion of illegal construction within the walls of a courtroom, as every other citizen is allowed to do.

Discrimination based on Ethnic Background

The principle of equality before the law means that if the State desires to enforce a law- it must be enforced equably. The same enforcement measures must be taken against citizens east of the "Green Line" as are taken against citizens to the west. The same enforcement must be applied to Jews and to Arabs. The reality is, the law is enforced more than 100 times as vigorously against the settlers as a group, and against the outposts specifically, while there is severe under-enforcement against the Beduins, residents of the Ara valley in the north, and the Carmel ridge and the Galilee.

The call to harass the residents of the outposts, to close the Jews in the settlements into 'ghettos' and to forbid them natural expansion, is reminiscent of the darkest periods of Jewish history. These unethical demands carry a strong scent of anti-semitism.

The full picture is even worse- Every citizen of the State of Israel who wants to build applies to the local authorities, who decide whether or not to give him a permit. The enforcement of building regulations is also the exclusive jurisdiction of the local authorities. The fact that in Judea and Samaria local authorities do not have the mandate to grant building permits or to enforce them is extreme discrimination against residents of Judea and Samaria, whether comparing them to other citizens of Israel, or to the Arabs of Judea and Samaria.

Political Corruption of Governmental Powers

The fact that every building permit must receive the approval of the Minister of Defense not only discriminates against the residents of Judea and Samaria, but it also turns an administrative matter of building permits into political intercourse, which is fundamentally improper.

The fact that Ehud Barak, the head of the Labor Party, is also the Minister of Defense who wants to harass his political opponents, destroy their homes, and expel them from their land, only emphasizes the absurdity of having Barak control the ability to build in Judea and Samaria, as well as the requirement that the Minister of Defense agree to each building permit.

The fact that Ministers of Defense over the past ten years have uttered blatantly political declarations about their unwillingness to permit construction in Judea and Samaria, discriminating against the Jewish residents of Judea and Samaria and preventing them from meeting the legal requirements for construction. Therefore it is inconceivable to enforce laws which citizens are a priori incapable of fulfilling, due to government harassment policies. Instead of harassing settlers, affirmative action should be employed due to the long history of discrimination against the process of building and planning in the settlements.

Another fundamental principle of the Rule of Law in a democratic country is that ministers and politicians are precluded from interfering with the enforcement of the law. Just as the Minister of Defense cannot decide to initiate prosecution against his political opponents, it is inconceivable that the head of the Labor Party Ehud Barak would be allowed to send soldiers to destroy the homes of his political opponents. This is a gross violation of the principles of legality and equality, and corrupt political interference with the law enforcement authorities of the State of Israel.

In addition, the use of IDF soldiers to destroy civilian housing is fundamentally untenable. A soldier who is drafted into mandatory service to protect his country, and not to be the political servant of Barak in destroying his own home, or the home of a friend.

The Government of Israel decided in 1998 that the enforcement of Israeli law on Israeli citizens of Judea and Samaria falls under the authority of the Israeli Police force, and not soldiers serving in the IDF. In light of that decision, the Attorney General to the Government, issued a directive "Rules for Enforcing the Law on Israelis in Judea and Samaria and Gaza" on the 2nd of September 2nd, 1998. Ehud Barak's use of IDF soldiers for these purposes is political, inappropriate, and patently illegal, with all that that implies.

The intensive use that the extreme Left has made of the Supreme Court to advance their agenda of hatred towards the settlers is not only an improper use of legal process, but an unacceptable politicization of the Supreme Court. Activists from the Left exploit the fact that the Supreme Court is unable to hear evidence or to hold orderly hearings, including joining all relevant parties to a claim, as well as the lack of right of appeal and the abrogation of right of the individual to appear before his accusers. All this is done to achieve political gains against the hated settlers, after having lost the recent elections. They proceed under the assumption that the judges of the Supreme Court hold opinions similar to their own. Beyond the abusive and political use of the Supreme Court, this has also contributed significantly to the ongoing deterioration of the faith the public has in the Supreme Court.

Injury to the State of Israel

The demands of foreign governments, in harmony with extreme left wing parties and movements in Israel and the Palestinian Authority, to enforce the law with a firm hand and by exacting power over a small group of Jews who live in outposts in Judea and Samaria, is a grave blow to the sovereignty and the right to govern of the State of Israel. There is no other country in the world that would accept this degree of blatant interference with internal matters between its citizens and/ or its policies of law enforcement on its residents.

The independence and democratic rule of every country is expressed in its sovereign legislation, which applies equally to all its citizens. The existence of law and the enforcement of the law upon its citizens is the internal concern of each state. The principle of equality before the law, which is one of the foundation stones of the Rule of Law, obligates the state to enable each citizen to affirm the law equally. If they violate the law, they must be subject to the same equal enforcement process and with the same force of law, by the state itself, and not suffer the whim of extreme racial and discriminatory pressure from foreign governments.

In Conclusion

The demand of leftist politicians to 'evacuate' outposts in Judea and Samaria is an illegal call, discriminating, on the basis of ethnicity, against the residents of Judea and Samaria. It is worth noting that their degree of compliance with the law, is much greater than in any other sector of society.

From the standpoint of the Rule of Law, enforcement must be applied equally upon every citizen of Israel, by the exclusive means of the enforcing arms, the courts of the country and the police force. It is not acceptable to discriminate against the residents of Judea and Samaria, relative to Beduin camps in the Negev, or the illegal construction which is much more common in the Arab sector in the Galilee, the Carmel, and the Ara valley.

The involvement of Ministers in general, and the Minister of Defense Ehud Barak in particular, in questions of law-enforcement in the outposts is political, inappropriate, illegal, and much more of a violation of the law than the violation of the Building & Planning regulations by the Jewish residents of Judea and Samaria.

The pressure by foreign governments to 'evacuate' outposts is unacceptable interference with the sovereign government of Israel and its internal matters. The call to enforce Israel's laws in an undemocratic, racist, and anti-semitic in a fashion that arouses the worst associations from recent and distant history of the Jewish people.

The residents of the outposts have license to take the most extreme legal measures against any person who tries to harass them, to defame them, to discriminate against them on a racial basis, to use the soldiers of the IDF in a manner which is patently illegal, and to engage the police for corrupt political maneuvers. Within that framework, it is possible and desirable to sue for personal damages from each person who violated the law, basic laws, international law, and the fundamental rights guaranteed to every citizen on an equal basis.

Backlash Beginning

Speech concerns some Israel backers

...some pro-Israel Democrats expressed concern about some of his remarks.

In what's become his trademark manner, Obama offered tough words for both Israelis and Palestinians in his address at Cairo University.

Rep. Eliot Engel (D-NY)...did concede there was one part of the speech he didn't agree with. “Where I have a problem is when settlements are mentioned alone,” he said, not in direct conjunction with steps Palestinians must take.

Obama’s firm statement on settlements have become a key concern for many American supporters of Israel, and especially those on the right side of American politics.

John Bolton, the former U.S. ambassador to the United Nations under President Bush, seized on Obama's settlement remarks, saying, "When you criticize your strongest ally in an environment like that, it is intended to send a message to that ally.” .

Rep. Mark Kirk (R-Ill.), another outspoken supporter of Israel and a potential Senate candidate next year...warned, “The Palestinians and Hamas have humiliated the Western parties that have tried to work with them."

Staunch Israel allies on the Democratic side of the aisle were more laudatory, buffering Obama's domestic position with the Jewish community.

Rep. Nita Lowey (D-NY), chairwoman of the State and Foreign Operations Appropriations Subcommittee, praised the trip and the speech..."While compromise will be required on both sides, the Palestinians and Arab states must unequivocally denounce terrorism, recognize Israel, cease anti-Israel incitement at home and within the United Nations, and support viable PA institutions."

Some pro-Israel officials grumbled that Obama wasn’t more forceful in urging Arab states to follow the model of slain Egyptian president Anwar Sadat in recognizing the Jewish state.

Mostly, though, mainstream Israel advocates like AIPAC have held off of public criticism of the new president, and are trying to convince the administration to narrow its demands for a settlement freeze to apply only to settlements on land that is expected ultimately to form part of a Palestinian state.