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CAMERA Alert: Are settlements illegal under international law?
Two articles by Eugene W. Rostow set the record straight
Committee for Accuracy in Middle East Reporting in America
www.camera.org
Shalom CAMERA E-Mail Team:
Recently, many mainstream American news outlets have been erroneously
reporting that Israeli settlements in the West Bank and Gaza Strip are illegal.
Please read the following articles by Eugene Rostow, a former Distinguished
Fellow at the U.S. Institute of Peace, which will provide you with critical
background information to respond to false claims about the legality of
settlements.
If your local media falsely characterizes Israeli settlements in Gaza and the
West Bank as illegal under international law, place a call to the foreign editor
requesting a correction. Also, please write a letter-to-the-editor for
publication.
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Copyright 1991 The New Republic Inc.
The New Republic, October 21, 1991
HEADLINE: Resolved: are the settlements legal? Israeli West Bank policies
BYLINE: Rostow, Eugene W.
Assuming the Middle East conference actually does take place, its official
task will be to achieve peace between Israel and its Levantine neighbors in
accordance with Security Council Resolutions 242 and 338.
Resolution 242, adopted after the Six-Day War in 1967, sets out criteria for
peace-making by the parties; Resolution 338, passed after the Yom Kippur War in
1973, makes resolution 242 legally binding and orders the parties to carry out
its terms forthwith. Unfortunately, confusion reigns, even in high places, about
what those resolutions require.
For twenty-four years Arab states have pretended that the two resolutions are
"ambiguous" and can be interpreted to suit their desires. And some
European, Soviet and even American officials have cynically allowed Arab
spokesman to delude themselves and their people--to say nothing of Western
public opinion--about what the resolutions mean. It is common even for American
journalists to write that Resolution 242 is "deliberately ambiguous,"
as though the parties are equally free to rely on their own reading of its key
provisions.
Nothing could be further from the truth. Resolution 242, which as
undersecretary of state for political affairs between 1966 and 1969 I helped
produce, calls on the parties to make peace and allows Israel to administer the
territories it occupied in 1967 until "a just and lasting peace in the
Middle East" is achieved. When such a peace is made, Israel is required to
withdraw its armed forces "from territories" it occupied during the
Six-Day War-- not from "the" territories nor from "all" the
territories, but from some of the territories, which included the Sinai Desert,
the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.
Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly
clear what the missing definite article in Resolution 242 means. Ingeniously
drafted resolutions calling for withdrawals from "all" the territories
were defeated in the Security Council and the General Assembly. Speaker after
speaker made it explicit that Israel was not to be forced back to the
"fragile" and "vulnerable" Armistice Demarcation Lines, but
should retire once peace was made to what Resolution 242 called "secure and
recognized" boundaries, agreed to by the parties. In negotiating such
agreements, the parties should take into account, among other factors, security
considerations, access to the international waterways of the region, and, of
course, their respective legal claims.
Resolution 242 built on the text of the Armistice Agreements of 1949, which
provided (except in the case of Lebanon) that the Armistice
Demarcation Lines separating the military forces were "not
to be construed in any sense" as political or territorial
boundaries, and that "no provision" of the Armistice
Agreements "Shall in any way prejudice the right, claims,
and positions" of the parties "in the ultimate peaceful
settlement of the Palestine problem." In making peace
with Egypt in 1979, Israel withdrew from the entire Sinai,
which had never been part of the British Mandate.
For security it depended on patrolled demilitarization and the huge area of
the desert rather than on territorial change. As a result, more than 90 percent
of the territories Israel occupied in 1967 are now under Arab sovereignty. It is
hardly surprising that some Israelis take the view that such a transfer fulfills
the territorial requirements of Resolution 242, no matter how narrowly they are
construed.
Resolution 242 leaves the issue of dividing the occupied areas between Israel
and its neighbors entirely to the agreement of the parties in accordance with
the principles it sets out. It was, however, negotiated with full realization
that the problem of establishing "a secure and recognized" boundary
between Israel and Jordan would be the thorniest issue of the peace-making
process. The United States has remained firmly opposed to the creation of a
third Palestinian state on the territory of the Palestine Mandate. An
independent Jordan or a Jordan linked in an economic union with Israel is
desirable from the point of view of everybody's security and prosperity. And a
predominantly Jewish Israel is one of the fundamental goals of Israeli policy.
It should be possible to reconcile these goals by negotiation, especially if the
idea of an economic union is accepted.
The Arabs of the West Bank could constitute the population of an autonomous
province of Jordan or of Israel, depending on the course of
the negotiations. Provisions for a shift of populations or,
better still, for individual self-determination are a possible
solution for those West Bank Arabs who would prefer to live
elsewhere. All these approaches were explored in 1967 and
1968. One should note, however, that Syria cannot be allowed
to take over Jordan and the West Bank, as it tried to do in
1970.
The heated question of Israel's settlements in the West Bank during the
occupation period should be viewed in this perspective. The British Mandate
recognized the right of the Jewish people to "close settlement" in the
whole of the Mandated territory. It was provided that local conditions might
require Great Britain to "postpone" or "withhold" Jewish
settlement in what is now Jordan. This was done in 1922. But the Jewish right of
settlement in Palestine west of the Jordan river, that is, in Israel, the West
Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never
been terminated and cannot be terminated except by a recognized peace between
Israel and its neighbors. And perhaps not even then, in view of Article 80 of
the U.N. Charter, "the Palestine article," which provides that
"nothing in the Charter shall be construed ... to alter in any manner the
rights whatsoever of any states or any peoples or the terms of existing
international instruments...." Some governments have taken the view that
under the Geneva Convention of 1949, which deals with the rights of civilians
under military occupation, Jewish settlements in the West Bank are illegal, on
the ground that the Convention prohibits an occupying power from flooding the
occupied territory with its own citizens. President Carter supported this view,
but President Reagan reversed him, specifically saying that the settlements are
legal but that further settlements should be deferred since they pose a
psychological obstacle to the peace process.
In any case, the issue of the legality of the settlements should not come up
in the proposed conference, the purpose of which is to end the military
occupation by making peace. When the occupation ends, the Geneva Convention
becomes irrelevant. If there is to be any division of the West Bank between
Israel and Jordan, the Jewish right of settlement recognized by the Mandate will
have to be taken into account in the process of making peace.
This reading of Resolution 242 has always been the keystone of American
policy. In launching a major peace initiative on September 1, 1982, President
Reagan said, "I have personally followed and supported Israel's heroic
struggle for survival since the founding of the state of Israel thirty-four
years ago: in the pre-1967 borders, Israel was barely ten miles wide at its
narrowest point. The bulk of Israel's population lived within artillery range of
hostile Arab armies. I am not about to ask Israel to live that way again."
Yet some Bush administration statements and actions on the Arab-Israeli
question, and especially Secretary of State James Baker's disastrous speech of
May 22, 1989, betray a strong impulse to escape from the resolutions as they
were negotiated, debated, and adopted, and award to the Arabs all the
territories between the 1967 lines and the Jordan river, including East
Jerusalem. The Bush administration seems to consider the West Bank and the Gaza
Strip to be "foreign" territory to which Israel has no claim. Yet the
Jews have the same right to settle there as they have to settle in Haifa.
The West Bank and the Gaza Strip were never parts of Jordan, and Jordan's
attempt to annex the West Bank was not generally recognized and has now been
abandoned. The two parcels of land are parts of the Mandate that have not yet
been allocated to Jordan, to Israel, or to any other state, and are a legitimate
subject for discussion.
The American position in the coming negotiations should return to the
fundamentals of policy and principle that have shaped American policy towards
the Middle East for three-quarters of a century. Above all, rising above
irritation and pique, it should stand as firmly for fidelity to law in dealing
with the Arab-Israeli dispute as President Bush did during the Gulf war.
Fidelity to law is the essence of peace, and the only practical rule for making
a just and lasting peace.
EUGENE V. ROSTOW is a Distinguished Fellow at the United States Institute of
Peace.
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Copyright 1990 The New Republic Inc.
The New Republic
April 23, 1990
HEADLINE: Bricks and stones: settling for leverage; Palestinian autonomy
BYLINE: Rostow, Eugene V.
Over the past several weeks the long-standing American objection to further
Israeli settlements in the West Bank has been pressed by the Bush administration
with new vehemence. The outcome of this argument is crucial.
It will affect the substance, fairness, and durability of any peace that may
emerge.
With varying degrees of seriousness, all American administrations since 1967
have objected to Israeli settlements in the West Bank on the ground that they
would make it more difficult to persuade the Arabs to make peace.
President Carter decreed that the settlements were "illegal" as
well as tactically unwise. President Reagan said that the settlements were legal
but that they did make negotiations less likely. The strength of the argument is
hardly self-evident. Jordan occupied the West Bank for nineteen years, allowed
no Jewish settlements, and showed no sign of wanting to make peace.
Yet if the West Bank were 98 or 100 percent Arab when the parties finally
reached the bargaining table, the impulse to accept a peace that ceded the whole
of the West Bank to an Arab state would be tempting to Americans and Europeans,
and even to some weary Israelis. The growing reality of Israeli settlements in
the area, on the other hand, should be a catalyst for peace, by imposing a price
on the Arabs for their refusal to negotiate.
But the American government keeps reciting the old formula. Secretary of
State James Baker has gone beyond previous American positions by threatening to
cut aid if the Israelis build more settlements in the West Bank. He spoke after
Arab protests against the possibility of large numbers of Soviet Jews settling
in Israel, particularly in the West Bank.
Wouldn't it have been more useful if Baker had told his Arab interlocutors
that if they want any parts of the West Bank to become Arab territory, they
should persuade Jordan and the Arabs living in the occupied territories to make
peace with Israel as rapidly as possible? Since 1949 the U.N. Security Council
has repeatedly urged and occasionally commanded the Arab states to make peace,
most recently in Resolutions 242 and 338. Thus far, with the exception of Egypt
in 1977, they have simply refused to comply. But Baker yielded to the Arab
outcry, and is trying to maneuver Israel into a position that no Israeli
majority can accept: to renounce the right of settlement "of the Jewish
people" -in the words of the Mandate-in any part of the West Bank.
The Jewish right of settlement in the West Bank is conferred by the same
provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and
Jerusalem before the State of Israel was created. The Mandate for Palestine
differs in one important respect from the other League of Nations mandates,
which were trusts for the benefit of the indigenous population.
The Palestine Mandate, recognizing "the historical connection of the Jewish
people with Palestine and the grounds for reconstituting their
national home in that country," is dedicated to "the
establishment in Palestine of a national home for the Jewish
people, it being clearly understood that nothing should be
done which might 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."
The Mandate qualifies the Jewish right of settlement and political development
in Palestine in only one respect. Article 25 gave Great Britain
and the League Council discretion to "postpone"
or "withhold" the Jewish people's right of settlement
in the Trans-Jordanian province of Palestine -now the Kingdom
of Jordan-if they decided that local conditions made such
action desirable. With the divided support of the council,
the British took that step in 1922.
The Mandate does not, however, permit even a temporary suspension of the
Jewish right of settlement in the parts of the Mandate west of the Jordan River.
The Armistice Lines of 1949, which are part of the West Bank boundary, represent
nothing but the position of the contending armies when the final cease-fire was
achieved in the War of Independence. And the Armistice Agreements specifically
provide, except in the case of Lebanon, that the demarcation lines can be
changed by agreement when the parties move from armistice to peace. Resolution
242 is based on that provision of the Armistice Agreements and states certain
criteria that would justify changes in the demarcation lines when the parties
make peace.
Many believe that the Palestine Mandate was somehow terminated in 1947, when
the British government resigned as the mandatory power. This is incorrect. A
trust never terminates when a trustee dies, resigns, embezzles the trust
property, or is dismissed. The authority responsible for the trust appoints a
new trustee, or otherwise arranges for the fulfillment of its purpose. Thus in
the case of the Mandate for German South West Africa, the International Court of
justice found the South African government to be derelict in its duties as the
mandatory power, and it was deemed to have resigned. Decades of struggle and
diplomacy then resulted in the creation of the new state of Namibia, which
has just come into being. In Palestine the British Mandate ceased to be
operative as to the territories of Israel and Jordan when those states were
created and recognized by the international community. But its rules apply still
to the West Bank and the Gaza Strip, which have not yet been allocated either to
Israel or to Jordan or become an independent state. Jordan attempted to annex
the West Bank in 1951, but that annexation was never generally recognized, even
by the Arab states, and now Jordan has abandoned all its claims to the
territory.
The State Department has never denied that under the Mandate "the Jewish
people" have the right to settle in the area. Instead, it said that Jewish
settlements in the West Bank violate Article 49 of the Fourth Geneva Convention
of 1949, which deals with the protection of civilians in wartime. Where the
territory of one contracting party is occupied by another contracting party, the
Convention prohibits many of the inhumane practices of the Nazis and the Soviets
before and during the Second World War-the mass transfer of people into or out
of occupied territories for purposes of extermination, slave labor, or
colonization, for example.
Article 49 provides that the occupying power "shall not deport or
transfer part of its own civilian population into the territory it
occupies." But the Jewish settlers in the West Bank are volunteers. They
have not been "deported" or "transferred" by the government
of Israel, and their movement involves none of the atrocious purposes or harmful
effects on the existing population the Geneva Convention was designed to
prevent. Furthermore, the Convention applies only to acts by one signatory
"carried out on the territory of another." The West Bank is not the
territory of a signatory power, but an unallocated part of the British Mandate.
It is hard, therefore, to see how even the most literal-minded reading of the
Convention could make it apply to Jewish settlement in territories of the
British Mandate west of the Jordan River. Even if the Convention could be
construed to prevent settlements during the period of occupation, however, it
could do no more than suspend, not terminate, the rights conferred by the
Mandate. Those rights can be ended only by the establishment and recognition of
a new state or the incorporation of the territories into an old one.
As claimants to the territory, the Israelis have denied that they are required
to comply with the Geneva Convention but announced that they
will do so as a matter of grace. The Israeli courts apply
the Convention routinely, sometimes deciding against the Israeli
government. Assuming for the moment the general applicability
of the Convention, it could well be considered a violation
if the Israelis deported convicts to the area or encouraged
the settlement of people who had no right to live there (Americans,
for example).
But how can the Convention be deemed to apply to Jews who have a right to
settle in the territories under international law: a legal right assured by
treaty and specifically protected by Article 80 of the U.N. Charter, which
provides that nothing in the Charter shall be construed "to alter in any
manner" rights conferred by existing international instruments" like
the Mandate? The Jewish right of settlement in the area is equivalent in every
way to the right of the existing Palestinian population to live there.
Another principle of international law may affect the problem of the Jewish
settlements. Under international law, an occupying power is supposed to apply
the prevailing law of the occupied territory at the municipal level unless it
interferes with the necessities of security or administration or is
"repugnant to elementary conceptions of justice." From 1949 to 1967,
when Jordan was the military occupant of the West Bank, it applied its own laws
to prevent any Jews from living in the territory. To suggest that Israel as
occupant is required to enforce such Jordanian laws-a necessary implication of
applying the Convention-is simply absurd. When the Allies occupied Germany after
the Second World War, the abrogation of the Nuremberg Laws was among their first
acts.
The general expectation of international law is that military occupations
last a short time, and are succeeded by a state of peace established by treaty
or otherwise. In the case of the West Bank, the territory was occupied by Jordan
between 1949 and 1967, and has been occupied by Israel since 1967.
Security Council Resolutions 242 and 338 rule that the Arab states and Israel
must make peace, and that when "a just and lasting peace" is reached
in the Middle East, Israel should withdraw from some but not all of the
territory it occupied in the course of the 1967 war. The Resolutions leave it to
the parties to agree on the terms of peace.
The controversy about Jewish settlements in the West Bank is not, therefore,
about legal rights but about the political will to override legal rights. Is the
United States prepared to use all its influence in Israel to award the whole of
the West Bank to Jordan or to a new Arab state, and force Israel back to its
1967 borders? Throughout Israel's occupation, the Arab countries, helped by the
United States, have pushed to keep Jews out of the territories, so that at a
convenient moment, or in a peace negotiation, the claim that the West Bank is
"Arab" territory could be made more plausible.
Some in Israel favor the settlements for the obverse reason: to reinforce
Israel's claim for the fulfillment of the Mandate and of Resolution 242 in a
peace treaty that would at least divide the territory. For the international
community, the issue is much deeper and more difficult: whether the purposes of
the Mandate can be considered satisfied if the Jews finally receive only the
parts of Palestine behind the Armistice Lines-less than 17.5 percent of the land
promised them after the First World War. The extraordinary recent changes in the
international environment have brought with them new diplomatic opportunities
for the United States and its allies, not least in the Middle East.
Soviet military aid apparently is no longer available to the Arabs for the
purpose of making another war against Israel. The intifada has failed, and the
Arabs' bargaining position is weakening. It now may be possible to take long
steps toward peace. But to do so, the participants in the Middle East
negotiations -the United States, Israel, Egypt, and the PLO-will have to look
beyond the territories.
The goal of Yitzhak Shamir's election proposal is an interim regime of Arab
autonomy in part of the West Bank and the Gaza Strip in accordance with the Camp
David Accords; the goal of the PLO is to establish a Palestinian Arab state in
the whole of the territories. It is hard to be sanguine about the possibility of
reconciling those positions through negotiations.
Establishing a cooperative relationship between Israel and the Arabs who live
in the occupied territories is a crucial part of the Palestine problem, but it
is not the whole of it, and surely not an end in itself. The last thing Israel
wants is an Arab Bantustan. If the status of the occupied territories is viewed
in isolation, negotiation will be excruciatingly difficult, and every item on
the agenda will be a tense and suspicious haggle on both sides.
The prospects for peace would be less forbidding if the question were
approached as one element in a plan for achieving a larger goal: a confederation
involving at least Israel, Jordan, and the occupied territories.
Membership could perhaps be open to poor Lebanon as well, or parts of it.
Even Syria, behind its ferocious words, may be preparing to move toward peace.
Syria and Israel have congruent interest in Lebanon and elsewhere, and
neither country wants a state dominated by the PLO as a neighbor.
The idea of a Palestinian confederation has been the recommendation of every
serious study of the Palestine problem for more than fifty years. It was the
essence of the partition proposals of the Peel Commission in 1936, and of the
General Assembly's 1947 partition plan, at least for Israel and the West Bank.
With different boundaries, it was also the basic idea of Israel's 1967 peace
offer, which will always correspond to Israeli public opinion: Palestine divided
into a jewish and an Arab state, united in a common market, with special
arrangements for Jerusalem and as much political cooperation as the traffic will
bear. Before the intifada started, it was the notion behind the de facto
Israel/Jordanian condominium for the West Bank, which was both effective and
practical.
After the past year's events in Eastern Europe and the Soviet Union, who can
say that progress in the Middle East is impossible?
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