What Made a Legally Established Settlement Illegal?
When the mothers of the Israeli boys kidnapped by Palestinian terrorists in the area of Gush Etzion, in “Israeli occupied” Judea, spoke before international bodies, many of the diplomats referred to them in their comments and questions as “settlers.” One is given to understand that, in their eyes, inclusion in that category means that they have no human rights and the world’s indifference to their fate is justified. In fact, the boys are not “settlers” but attend schools in Jewish towns in Judea, two of them in kibbutz Kfar Etzion and one in Kiriyat Arba. But let’s leave that aside and cut straight to the core of the issue of the legality of Jewish settlements outside the 1949 Armistice Lines.
There is only one International law concerning Israeli settlement that is binding and has never been superseded. The League of Nations, on July 24th, 1922, established the Mandate for Palestine, by unanimous vote, which included two Islamic states, Persia and Albania. The resolution stated, in part, “Whereas recognition has been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country….”
Note “reconstituting” their national home. The Jewish people was explicitly recognized as the long-exiled indigenous people of that land.
Moreover, Article 6 of the Mandate directs the Administration of Palestine to facilitate … “close settlement by Jews on the land….”
And Jews settled. And it was not contested that those settlements were legal under international law.
Kfar Etzion was founded in the early 1940’s. In the 1948-49 war it was destroyed and its defenders massacred by the Jordanian Legion, who took the women and children captive. They were repatriated after the armistice in 1949. Kfar Etzion was part of the area invaded and annexed illegally by Jordan and renamed the “West Bank.” Kfar Etzion was reestablished after Israel retook those lands in a defensive war in 1967 and it was resettled by children of the original founders.
So when did Kfar Etzion become illegal? When Jordan illegally invaded and occupied it?
Anyone who sees Israel as an occupier of foreign land has to argue either that the League of Nations Mandate was illegal or that Jewish settlement became illegal when Jordan invaded and occupied it. No one ever argued for the former, the illegality of the Mandate, and the latter is legally absurd and morally repugnant.
Consider a parallel hypothetical case: in1974, Turkey invaded Cyprus and occupied the northern third of the island, drove out a great many Greek Cypriots and brought its own citizens, ethnic Turks from mainland Turkey, to settle Cyprus. Suppose Turkey were to invade Cyprus again, with the declared goal of exterminating the Greek Cypriots and annexing the island to Turkey. And suppose the Greek Cypriots were to win and drive the Turkish military from Cyprus. Would Cyprus be obligated by the Geneva Conventions to treat northern Cyprus as occupied foreign territory and prevent its citizens from resettling there?
The crucial fact is that the world has recognized the Jewish people as the indigenous people of the land, entitled to resettle it. The part of the land east of the 1949 Armistice Line was taken from them by naked aggression with the intent of annihilating the Jewish residents, as declared by Azzam Pasha, Secretary General of the Arab League:
“This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades".
In 1967, in the course of its self-defense against another attempt at genocide, the land came into the possession of Israel, which is the very same state of the Jews which was specifically contemplated by the Mandate.
The Geneva Conventions of 1949 do not apply to Israeli presence in Judea and Samaria (or Gaza either, as a matter of fact). All discussion about the Jewish settlements being illegal, whether under the Geneva Conventions or otherwise, is just irrelevant sophistry.
The writer, formerly a law professor, has practiced law in New York and California and in Israel since 1986.