The Legality of Israeli “Occupation”
(New York Sun, July 11, 2012)
With startling clarity an Israeli legal commission, chaired by retired Supreme Court Justice Edmund Levy, has declared: “According to international law, Israelis have the legal right to settle in Judea and Samaria.” Challenging settlement critics inside Israel and worldwide, it asserted that international laws of “occupation” are not applicable “to the unique and sui generis historic and legal circumstances” of Israel’s presence in these territories, where Jews returned after the Six-Day War in 1967 and more than 300,000 Israelis now live.
Those “historic and legal circumstances” are well known and everywhere disregarded. Judea and Samaria comprised the ancient homeland of the Jewish people, where the tombs of their patriarchs and matriarchs are located and the kingdoms of David and Solomon flourished. “The Land of Israel,” declared the Proclamation of Independence in 1948, was “the birthplace of the Jewish people” where “their spiritual, religious and national identity was formed.”
International law is more complicated but no less supportive of the right of Jewish settlement. The League of Nations Mandate, drafted at the San Remo Conference in 1920 and adopted unanimously two years later, recognized “the historical connection of the Jewish people with Palestine” and guaranteed to Jews the right of “close settlement” between the Jordan River and the Mediterranean.
The Mandate was never modified or terminated. In the Charter of the United Nations, Article 80 explicitly protected the rights of “any peoples” and “the terms of existing international instruments to which members of the United Nations may respectively be parties.” Known as the “Palestine clause,” it was drafted by Jewish representatives to assure that Mandatory guarantees would remain in force.
Jewish settlement rights were flagrantly violated when Jordan invaded Israel in 1948, occupied Judea and Samaria, and established a Judenrein West Bank. But Israel’s stunning victory in the Six-Day War returned the biblical homeland to the Jewish people. UN Security Council Resolution 242 permitted Israel to administer the land until “a just and lasting peace in the Middle East” was achieved. Even then, Israel would only be required to withdraw its armed forces (nothing was said about civilians) “from territories” – not from “the territories” or “all the territories” that it administered.
The absence of “the,” the famous missing definite article, was not an oversight. It resulted from months of diplomatic effort to clarify the meaning of Resolution 242. Eugene V. Rostow, the undersecretary of state for political affairs who was instrumental in its drafting, asserted that “the Jewish right of settlement in the area is equivalent in every way to the right of the existing population to live there.”
Settlement critics incessantly cite the Geneva Convention (1949), which assured that an “occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Adopted in the shadow of Nazi atrocities, it was intended to prevent the repetition of forced transfers of civilian populations “for political and racial reasons.” But the government of Israel neither deported Palestinians nor transferred Israelis. Ever since the first settlers rebuilt destroyed Jewish communities in Gush Etzion and Hebron, Jews voluntarily – and enthusiastically - returned to their ancient homeland.
Yet Israeli governments across party lines have been remarkably dilatory in asserting Jewish settlement rights. The pioneering settlers, after all, were religious Zionists whose passion for rebuilding Jewish communities in the biblical homeland challenged the secular politics of Israeli leaders who still depend upon a secular majority to sustain them in power.
The Levy Commission conclusions predictably enraged the Israeli left, whose incessant mantra of settlement illegality was sharply challenged. The report “gives a stamp of approval to a transgression of the law,” complained a Kadima Party Knesset member, and “badly tarnishes Israel’s image.” It “was written in Wonderland, in which the laws of the absurd rule,” proclaimed Yesh Din, which provides legal assistance to Palestinians. Peace Now complained that it was “pre-ordered” by the Right for committee members who “live in perpetual denial.”
Misconceptions that impel politically driven conclusions die hard, as The New York Times quickly demonstrated. Castigating Commission findings as “bad law, bad policy and bad politics,” Times editors stood with “most of the world” in erroneously proclaiming settlements in violation of international law. But they misapplied the Geneva Convention, which prohibits forced population transfers. They distorted UN Resolution 242 by ignoring the meaning of its precise wording: “withdrawal of Israeli armed forces,” not civilians, from “territories,” not “the” territories. And they inflated by 50 percent the number of Palestinians that Israel is “determined” to rule “under an unequal system of laws and rights.”
The final word properly belongs to Yehuda Z. Blum, former Israeli Ambassador to the United Nations, who declared in 1979: “Jews are not foreigners anywhere in the Land of Israel.” The Levy Commission affirmed the obvious. For that alone, however, it made history.
