OCCUPIED PALESTINIAN TERRITORY?

OCCUPIED PALESTINIAN TERRITORY?

A TIME TO SPEAK (Ecclesiastes 3:7)

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VOLUME I: No. 6
15 June 2001 - 24 Sivan 2001
 
THY DWELLINGS, O ISRAEL (Numbers 24:5)
"Nevermore shall you be called Forsaken
Nor shall your land be called Desolate."  --  Isaiah 62:4
"I will restore My people Israel,
They shall rebuild ruined cities and inhabit them,
They shall plant vineyards and drink their wine,
They shall till gardens and eat their fruits, 
And I will plant them upon their soil, 
Nevermore to be uprooted 
From the soil I have given them,
Said The Lord your God."   --  Amos 9:14
"God will have mercy on Israel yet,
And again in his borders see Jacob set."  --  George Gordon, Lord Byron
There is much comment, reporting and misreporting on that part of the Land of Israel that lies outside of the 1949 cease-fire lines ("Green Line"), and the Israeli communities that dwell therein. Those reports and comments use a widely accepted set of terms, assumptions and concepts without to what they really mean: 
1) Is there a region that can be called "Occupied Palestinian Territory" or "Israel-Occupied Palestine"? 
There is no such place. There is no nation of Palestine, and never has been one in the history of the world. [See Issue I:2 - February   ]. Israel has Administered Territories, that lie between between the west bank of the Jordan River and the 1949 Israel-Jordan ceasefire line, that was never defined as a fixed border. There has been no national sovereignty over this land since the Roman conquest of Judea in 70 C.E. The last foreign state to rule it was the Ottoman Turkish Empire that ceased to exist in 1919. Israel is not "occupying" the territory of any other state or nation because the land does not belong to any other state or nation. They are properly termed "Administered Territories".
2) What is the modern history of this region? 
After World War I, the League of Nations gave Great Britain a Mandate for temporary administration over "Palestine", including what is now Israel and Jordan and the Administered Territories. The Mandate confirmed the terms of the British Balfour Declaration of 1917: Palestine was to be a Jewish National Home, open to "close Jewish settlement". Both documents protected the personal rights of the very sparse non-Jewish population already in this region, but created no national rights for that sparse population. The League of Nations Mandate was later confirmed by its successor United Nations.
In 1922, the British government altered the terms of the Mandate by detaching all of Palestine east of the Jordan River, to create the Emirate of Trans-Jordan for its protege Abdullah, a new arrival from the Hejaz in Arabia. This area was 76 percent of Mandate Palestine, sliced away from the Jewish National Home.
David Lincoln, rabbi of Park Avenue Synagogue in New York, draws on British historical documents for an explanation of this event, published in The Jewish Sentinel, October 1993:
"[. . . ] The Balfour Declaration had, of course, considered Trans-Jordan (today's Jordan) to be part of Palestine and thus to be included in any future Jewish State. In 1921, Churchill was appointed colonial secretary with responsibility for the Middle East. . . . . A little later he visited Palestine at the very time when the Emir (later King) Abdullah and his Bedouin Army were trying to enter Trans-Jordan from the south . . . . 
"Unwilling to reinforce the garrison [. . .] Churchill made a deal. Abdullah could settle down where he was The area was to be excluded from the Jewish National Home, and Abdullah was to agree not to oppose the rest of Palestine being Jewish! [. . . .] No one and no government ever thought or suggested that the "West Bank" should not be part of a future Israel. . . . . "
However, the British government thereafter violated both the Balfour Declaration and the Mandate by restricting or in places banning Jewish settlement even west of the Jordan. It also restricted or virtually cut off Jewish immigration, just at the time a National Home was most desperately needed by the Jews of German-occupied Europe. At the same time, the British tolerated if not encouraged Arabs from other countries to come in - albeit illegally - and take the places from which it banned the Jews.
  Since 1967, Jews have finally established or re-established communities that British governments and news media brand "illegal". In truth, it was the British ban on Jewish settlement that was illegal. 
3) How did Israel come to administer these territories? 
  In 1947, the United Nations Partition whittled down the remnant of the Jewish National Home to a mere 17 percent of Mandate Palestine. The Arabs, including the recent arrivals from other countries, where offered a state in the remainder of the land. They rejected the offer, and six Arab nations went to war to overturn the UN plan and prevent the establishment of the Stgate of Israel.
   In the course of that war, Trans-Jordan invaded and seized what are now the Administered Territories. It then changed its name to Jordan. In 1967, Jordan again attacked Israel, and lost the territories. Since them, Israel has been administering these territories. As explained in articles that follow, Israel did not attack or invade and does not "occupy" the territory of any other nation or state.
4. Where are the "settlements"? 
  The communities discussed in this issue are those established or re-established after 1967, in the area the Jordanians called their West Bank. The historical names for this area are the ancient and biblical "Judah" and "Samaria". [The Hebrew Yehuda and Shomron form the acronym YESHA.) They are all within the bounds of the Mandate Jewish National Home after 1922, and on land over which no other nation or state has or can rightfully claim sovereignty. 
  Some of the communities were re-established in places where the Jews had in previous decades been massacred or violently driven out by Arabs. These include the older parts of Jerusalem and the ancient Jewish community of Hebron, and the Etz-Zion bloc near Jerusalem. Some of those who came back to re-establish those communities are the children of the Jews who had been murdered or driven out.  Of the other communities, most of them are built on wasteland that had no owners. Any land that had a previous owner was purchased and paid for.
5. Are these Jewish communities a violation of the Oslo Accords or any other agreements?
  No. They are not a violation of any agreement. They are not banned or limited in any agreement. 
  They are termed "illegal" or "a violation of human rights" or "a war crime" by parties who believe that once Arabs destroy a Jewish community in the Land of Israel, it must remain forever judenrein. These same parties have no complaints about the proliferation of Arab "settlements" in the same area. Nor do they question the Arab demand that all territory they hold or claim be free of Jews, while Arabs make up almost 20 percent of the population of Israel inside the Green Line. 
6. Is the so-called "occupation" illegal? Are the "settlements" illegal?
No. Experts on international law have analyzed the status of the administered territories and the Jewish communities and found no taint of illegality on Israel's part. Outstanding among these experts was the late Eugene V. Rostow, an authority on international law, a U.S. government Undersecretary of State for Political Affairs (1966-1969) and a Distinguished Fellow at the United States Institute of Peace. He examined the subject in two articles in The New Republic, 1990 and 1991.
 
Excerpts from article of April 1990:
"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 nonjewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."
"The Mandate does not . . . 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. [. . . .. ]
 "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. . . . . 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. [. . . .] 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. [. . . . ] 
"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.
"[. . . . ]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."
Excerpts from article of October 1991:
"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 1992. 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...."
"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."
  

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Since the PLO launched the Oslo War in September 2000, there have been efforts in may quarters to make the perfectly legal civilian communities of YESHA equivalent to or even the cause of the violence and terrorism. There are even international efforts to make an end to terrorism conditional on the end to such communities.
The fallacies of these demands is exposed in "The Settlement Myth", by Jeff Jacoby, Boston Globe, 24 April 2001:
"[. . . .] The Palestinians, you may have noticed, have changed their tune. When the current orgy of violence against Israelis began last fall, the explanation out of Gaza City -- faithfully echoed by most of the Western media -- was that it was all Ariel Sharon's fault. His visit to the Temple Mount on September 28, it was said, outraged and infuriated Palestinians. [. . . .] Even Palestinians admit it isn't true. 
"[. . . . ] The real cause of the violence, Palestinians now claim, is the growth of Israeli communities in Gaza and the West Bank. "A cessation of settlement activities is part of a cessation of violence," says Faisal Husseini, a prominent Palestinian official. Jibril Rajoub, one of Arafat's top militiamen, seconds the motion. 'Everybody should know,' he announced, 'that those settlements are the cancer and the reason at all times for tension.' 
"This excuse, too, has found a ready reception in the media -- especially since the international fact-finding committee headed by George Mitchell recommended, as a 'confidence-building measure,' that Israel declare a moratorium on expanding the settlements. When Secretary of State Colin Powell briefed the press on the Mitchell Committee report, he was repeatedly asked what Washington would do to compel Israel to freeze its settlements. No reporter seemed to wonder what Washington would do to compel Arafat to stop his murderous offensive. 
"It hasn't taken long for the Palestinian line -- Jewish settlements justify Arab violence -- to become conventional wisdom. 'Stop those settlements,' commands [British magazine] The Economist [. . . .] The Chicago Tribune editorializes: 'There is little incentive for the Palestinians to return to the table without an Israeli freeze on settlements.' 
"Nonsense. 
"[. . . .] The Arab rocks, bullets, Molotov cocktails, and suicide bombs of the past eight months are no different from the Arab rocks, bullets, Molotov cocktails, and suicide bombs of the past eight years -- the years of the Oslo "peace" process. The more Israel has agreed to give, the more enraged and uncompromising the Palestinian reaction has been. A paradox? Only to those who have never mastered the fundamental lesson of Appeasement 101: Give a dictator the sacrifice he demands and you inflame his appetite for more. 
"To insist that Israel "stop those settlements" in exchange for an end to Arab violence is to insist that Oslo be up-ended. The Israeli-Palestinian accords have never barred Israel from building or expanding settlements in the territories; the ultimate fate of those communities has always been one of the "permanent status" issues to be decided at the end of the process. 
"By contrast, the starting point of the peace process -- the foundation on which it was built -- was that Palestinian violence had ended. "The PLO commits itself ... to a peaceful resolution of the conflict between the two sides," reads the document that Arafat signed on September 9, 1993, "and declares that all outstanding issues relating to permanent status will be resolved through negotiations.... The PLO renounces the use of terrorism and other acts of violence." . . . . They did not promise to end the violence only if Israel agreed to their every demand. They promised to end the violence for good. 
"If that promise was a lie, the entire peace process is a lie. Is it? Look at the Middle East and draw your own conclusion. 
    

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The Israel Foreign Ministry makes these points on the issue of the "settlements":
1. Jewish settlement in the West Bank and Gaza Strip territory has existed from time immemorial and was expressly recognized as legitimate in the Mandate for Palestine adopted by the League of Nations." 
2. Some Jewish settlements, such as in Hebron, existed throughout the centuries of Ottoman rule, while settlements such as Neveh Ya'acov, north of Jerusalem, the Gush-Etzion block in Judea and Samaria, the communities north of the Dead Sea and Kfar Darom in the Gaza region, were established under the British Mandate prior to the establishment of the State of Israel." 
3. For more than a thousand years, the only administration which has prohibited Jewish settlement was the Jordanian occupation administration, which during the nineteen years of its rule (1948-1967) declared the sale of land to Jews a capital offense." 
4. Repeated charges regarding the illegality of Israeli settlements must be regarded as politically motivated, without foundation in international law. Similarly, as Israeli settlements cannot be considered illegal, they cannot constitute a grave violation of the Geneva Convention, and hence any claim that they constitute a war crime is without any legal basis. Politically, the West Bank and Gaza Strip is best regarded as territory over which there are competing claims which should be resolved in peace process negotiations. Israel has valid claims to title in this territory based not only on its historic and religious connection to the land, and its recognized security needs, but also on the fact that the territory was not under the sovereignty of any state and came under Israeli control in a war of self-defense, imposed upon Israel." 
    

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The real issue is not the plots of land on which Israelis dwell, but that they dwell anywhere at all. How this issue is disguised is pointed out in "The Meaning of al-Nakba," by by Daniel Doron, Jerusalem Post, 24 May 2001:
"The Palestinian Arabs' insistence that Israel's establishment - which they mark as al-Nakba (the Catastrophe) Day - was on Arab land, stolen from them, reveals that their conflict with Israel is not about settlements or the refugees' rights. It is about Israel'slegitimacy and right to exist. [. . . .]
"Few deal any more with how the conflicting claims to the land arose, and what Israel's claim to the land is based on, morally and legally. Legal title to land is based on national sovereignty over it and on individual property rights. The tiny Palestinian Arab community that inhabited the Southern Syrian-Turkish province, which was later named Palestine, never had any national sovereign rights in this land. There was never an independent Palestinian Arab entity in "Palestine," so no one could have stolen"Palestinian" lands. 
"Private Arab property rights (mostly squatters' rights) were only over a small fraction of the land that was habitable. Over 95% of the land was totally desolate (as is most of the land in the West Bank today) or swampy, as Mark Twain and others attested back in the 1860s. The land was Turkish, then British and later Jordanian by unilateral annexation. It was always acquired, like the Arabs did, by conquest, not through any moral or legal claim. 
"After conquering the Middle East, the British decided, generously, to gradually return most of it to its Arab clients. The British reserved, however, a tiny sliver relative to the vast territories given to the Arabs, as a mandate sanctioned by the League of Nations for the express purpose of establishing a Jewish national home, because Jewish claims to this land were far more compelling, historically and morally. 
"Jewish sovereignty preceded the Arabs' by many centuries. Jews were forcibly expelled, and ever since were continuously endangered for lack of a home. It was only just to give them, too, a chance to survive in what was then a virtually empty, deserted land, especially since the Arabs received vast territories that could fully satisfy their yearning for independence. 
"[. . . .] As for individual Arab property, none was seized then for the purpose of building the Jewish national home. The Jews bought every acre of land, even though the mandate required the British to allocate to them much of the vast government holdings. 
"When catastrophe struck, the Jews were its victims, not the Arabs. The Arabs who feel the world owes them because of the refugees' tragedy showed no pity for Jewish refugees. As Jewish existence increasingly became endangered, they became more determined to annihilate those who were saved. [. . . .]
"Refusing to accept moral responsibility and blaming Israel, the Arabs are trying to undermine Israel's moral right to exist and are rationalizing its eventual elimination. This is what the commemoration of al-Nakba means." 
  

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Among the most passionate foes of Jewish communities in Judea-Samaria is the International Red Cross, which defines them as "a war crime". This is the International Red Cross that:
  1) refrained from any effort to help the prisoners in Nazi concentration camps.
  2) assisted the escape of Nazi war criminals.
  3) refuses to recognize the Israeli Red Shield of David emblem, though it 
  recognizes the Arab Red Crescent, the Iranian Red Lion and the Russian Red Star.
  4) refrains from any reaction to Arab murder of Israeli prisoners of war.
  5) refrains from any disapproval of military use of Red Crescent ambulances.
One response to the IRC is "Legality of the Settlements" by Moshe Dann, Jerusalem Post, 22 May 2001: 
"The accusation by Rene Kosirnik, head of the International Red Cross's delegation to Israel and the territories, that settlements are "war crimes" at a time when Palestinian gunners and suicide bombers are targeting civilians is a moral outrage. 
"But Kosirnik's condemnations of settlements as "illegal" according to international law are not new. They rely solely on Article 49 of the Fourth Geneva Convention, drawn up a few years after the end of the Second World War . . . . According to the International Committee of the Red Cross, the recognized authority on the Geneva Convention, this applies to what it calls "Israel's occupation of the West Bank." But there was no court; the ICRC was judge and jury. [See Rostow, above, on the accurate interpretation of this convention]
"This decision, taken originally by the ICRC in the early 1970s and confirmed every year since, has been the basis for opposition to Israeli "occupation" and "settlement." But these decisions, unlike legal opinions on any other issues, are made in secret, without any form of due process. Those who made the decision and the procedures by which they arrived at their conclusions are "confidential." Every attempt I made to obtain more detailed information was rejected. So much for democracy and judicial fairness. [ . . . .]
"[The] ICRC's consistent and determined bias, which undermines its claim to impartiality. Theirs is a shameful past and a dishonest present." 
 
 
END