Yoram Ettinger
Yoram EttingerPhoto: INN

Ambassador (ret.) Yoram Ettingeris author of “Second Thought: a US-Israel Initiative” bit.ly/48xAQio

Secretary of State Antony Blinken represents conventional wisdom when claiming that “It’s been longstanding US policy… that new settlements are… inconsistent with international law.”

However, conventional wisdom is frequently demolished by the march of facts.

For instance:

*According to Prof. Eugene Rostow, who was the co-author of the November 22, 1967 UN Security Council Resolution 242, served as Undersecretary of State and was the Dean of Yale University Law School: “Jews have the same right to settle in the 'West Bank' as they have in Haifa.”

*According to UN Resolution 242, Israel is required to withdraw from territories, not the territories, nor from all the territories, but some of the territories, which included Judea and Samaria (aka the 'West Bank'), East Jerusalem, the Gaza Strip, the Sinai Peninsula and the Golan Heights. Moreover, according to Prof. Rostow, “resolutions calling for withdrawal from all the territoriles were defeated in the Security Council and the General Assembly…. Israel was not to be forced back to the fragile and vulnerable [9-15 mile-wide] lines… but to secure and recognized boundaries, agreed to by the parties…. In making peace with Egypt in 1979, Israel withdrew from the entire Sinai… [which amounts to] more than 90% of the territories occupied in 1967….”

*Former President of the International Court of Justice, Judge Stephen M. Schwebel, stated: “Between Israel, acting defensively in 1948 and 1967 (according to Article 52 of the UN Charter), on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was [British Mandate] Palestine…. It follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful…. [The 1967] Israeli conquest of territory was defensive rather than aggressive… [as] indicated by Egypt's prior closure of the Straits of Tiran, blockade of the Israeli port of Eilat, and the amassing of [Egyptian] troops in Sinai, coupled with its ejection of the UN Emergency Force…[and] Jordan’s initiated hostilities against Israel…. The 1948 Arab invasion of the nascent State of Israel further demonstrated that Egypt's seizure of the Gaza Strip, and Jordan's seizure and subsequent annexation of the 'West Bank' and the old city of Jerusalem, were unlawful….”

*The legal status of Judea and Samaria is embedded in the following authoritative, binding, internationally-ratified documents, which recognize the area for what it has been: the cradle of Jewish history, culture, language, aspirations and religion.

(I) The November 2, 1917 Balfour Declaration, issued by Britain, calling for “the establishment in Palestine (a synonym to the Land of Israel) of a national home for the Jewish people….”

(II) The April 24, 1920 resolution, by the post-First World War San Remo Peace Conference of the Allied Powers Supreme Council, entrusted both sides of the Jordan River to the British Mandate for Palestine, for the reestablishment of the Jewish Commonwealth: “the Mandatory will be responsible for putting into effect the [Balfour] declaration originally made on November 2, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people.” It was one of over 20 Mandates (trusteeships) established following WW1, responsible for the boundaries of most Arab countries.

(III) The July 24, 1922 Mandate for Palestine was ratified by the Council of the League of Nations, entrusted Britain to establish a Jewish state in the entire area west of the Jordan River, as demonstrated by its 6th article: “[to] encourage… close settlement by Jews on the land, including State lands and waste lands….” The Mandate was dedicated exclusively to Jewish national rights, while guaranteeing the civic rights of all other religious and ethnic groups. On July 23, 1923, the Ottoman Empire signed the Treaty of Lausanne, which included the Mandate for Palestine.

(IV) The October 24, 1945 Article 80 of the UN Charter incorporated the Mandate for Palestine into the UN Charter. Accordingly, the UN or any other entity cannot transfer Jewish rights in Palestine – including immigration and settlement - to any other party.

According to Article 80 of the UN Charter and the Mandate for Palestine, the 1967 war of self-defense returned Jerusalem and Judea and Samaria to its legal owner, the Jewish state. Legally and geo-strategically the rules of “belligerent occupation” do not apply Israel’s presence in Judea and Samaria, since they are not “foreign territory,” and Jordan did not have a legitimate title over the West Bank. Moreover, the rules of “belligerent occupation” do not apply in view of the 1994 Israel-Jordan Peace Treaty. The 1950-67 Jordanian occupation of Judea and Samaria violated international law and was recognized only by Britain and Pakistan.

*The 1949 4th Geneva Convention prohibits the forced transfer of populations to areas previously occupied by a legitimate sovereign power. However, Israel has not forced Jews to settle in Judea and Samaria, and Jordan’s sovereignty there was never legal.

The November 29, 1947 UN General Assembly Partition Resolution 181 was a recommendation, lacking legal stature, superseded by the Mandate for Palestine. The 1949 Armistice (non-peace) Agreements between Israel and its neighbors delineated “non-territorial boundaries.”

The term “Palestine” was a Greek and then a Roman attempt (following the 135 CE Jewish rebellion) to eradicate Jews and Judaism from human memory. It substituted “Israel, Judea and Samaria” with “Palaestina,” a derivative of the Philistines, an arch enemy of the Jewish people, whose origin was not in Arabia, but in the Greek Aegian islands.

The aforementioned march of facts demonstrates that Secretary Blinken’s conventional wisdom on the Jewish settlements in Judea and Samaria is based on gross misperceptions and misrepresentations, which fuels infidelity to law, undermining the pursuit of peace.

More on the legality of Jewish settlements in Judea and Samaria in this article by George Mason University Law School Prof. Eugene Kontrovich.