Are They Legal? Israeli Settlements and International Law

Are They Legal?

Israeli Settlements and International Law
Attempts to present Jewish settlement in West Bank territory (ancient Judea and Samaria) as illegal and "colonial" in nature ignores the complexity of this issue, the history of the land, and the unique legal circumstances of this case.
Israel Ministry of Foreign Affairs


Professor Eugene Kontorovich: The Legal Case for Israel

The Levy Commission to Examine the Status of Building in Judea and Samaria

This report takes on the issue of "Occupation" and Israeli sovereignty over Yehudah and Shomron (the West Bank head on, addressing the issues of International Law.


Below is the text of the actual Levy Report in Hebrew, followed by a link to an English translation of the actual legal arguments of the Levy Report (from Elder of Ziyon) and after that a translation of the conclusions and recommendations of the Report in English.


Here is the Hebrew text of the Levy Report (full page view here)

English Translation of the
Legal Arguments in the Levy Report

Elder of Ziyon

Since the Levy Report was released, there has been a lot of heat but little light about its legal reasonings, which were in Hebrew. The only part that was released in English were its conclusions and recommendations.

Here, for the first time, is an English translation of its legal arguments. Those who try to downplay the report must find reasons why these arguments are invalid, rather than the proof by assertion that they usually resort to.

Continue reading English Translation of the Legal Arguments in the Levy Report on the Elder of Ziyon blog.

Conclusions and Recommendations of the Levy Commission Report

(full page view here)




The Legal Right To Palestine

International lawyers Howard Grief and Jacques Gauthier, along with former Israeli Ambassador to the UN Dore Gold review the history of the international legal precedents that demonstrate the legitimacy of the State of Israel in full accordance with International Law

  


Dr. Jacques Gauthier, "Whose Jerusalem Is It?" (see notes on this talk here)




Who Do The Territories Belong To?
The video, with English subtitles, is from The Yesha Council, which has put together other videos as well, in Hebrew.



A UN Resolution to Recognize a Palestinian State within the "1967 Borders" Would Be Illegal
A letter drafted by lawyers of the Legal Forum for Israel to UN Secretary General Ban Ki-Moon
JCPA, May 2011

Hebrew version of above letter is here

Quand l'occupant n'est pas celui que l'on veut bien croire... 
Article in French about the above letter includes an interview with Prof. Eliav Shohatman on the Land of Israel's international law status
HaModia (French Edition), May 29, 2011

The Illegal-Settlements Myth
by David M. Phillips
Commentary, December 2009

Israeli settlements are more than legitimate 
In fact, the 1922 Mandate for Palestine encourages them.
By Eric Rozenman 
LA Times, December 11, 2009

Preserving a legal inheritance: settlement rights in the "Occupied Palestinian Territories"
By Gerald M Adler
Law Society of Scotland, September 14, 2009

The International Law and The Arab-Israel Conflict
Extracts from "Israel and Palestine - Assault on the Law of Nations"
By Julius Stone
Editor: Ian Lacey
2003

International Law Regarding The Land of Israel and Jerusalem
More on the San Remo Conference
by Elliott A. Green
Midstream, February/March, 1999

San Remo's Mandate: Israel's 'Magna Carta'
The 1920 San Remo resolution answered a fundamental issue that still plagues the Israeli-Palestinian peace talks today: whether Israel has a right to the land.



See here for further clarification on the importance of San Remo and "The Mandate For Palestine"

Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law
Howard Grief
NATIV Online, vol. 2, 2004

From "Occupied Territories" to "Disputed Territories"
The term "occupied territories" or "occupation" seems to apply only to Israel
By Dore Gold
Jerusalem Center For Public Affairs, January 16, 2002

Diplomatic and Legal Aspects of the Settlement Issue
Settlements are not illegal, and have neither the size, population, nor placement to deserve the attention they receive
By Jeffrey Helmreich
Jerusalem Center For Public Affairs, January 19, 2003

Articles By Eugene Rostow:
o "Historical Approach to the Issue of Legality of Jewish Settlement Activity"
o "Are the settlements legal? Resolved"
from Countering Bias and Misinformation mainly about the Arab-Israel conflict
by Maurice Ostroff

Inappropriate Use of the Fourth Geneva Convention
Did Israel really use "deportation" and "forced transfer" of its own population into "occupied territories"?
By Eli. E. Hertz 
Myths and Facts, February 3, 2010

World Leaders Ignore International Law
Rewriting history by using loaded language such as 'Occupied Territories,' the Settlements as an 'Obstacle to Peace' and 'Not Legitimate'
Eli. E. Hertz
Myths and Facts, September 21, 2009

Israel and "Palestine": What International Law Requires by Louis René Beres

Israel and "Palestine": What International Law Requires

by Louis René Beres
May 12, 2016 at 5:00 am

http://www.gatestoneinstitute.org/8016/israel-palestine-international-law

Under relevant international law, a true state must always possess the following specific qualifications: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.

• While this contingent condition of prior demilitarization of a Palestinian state may at first sound reassuring, it represents little more than a impotent legal expectation.
• For one thing, no new state is ever under any obligation to remain "demilitarized," whatever else it may have actually agreed to during its particular pre-state incarnation.
• "The legality of the presence of Israel's communities the area (Judea and Samaria) stems from the historic, indigenous, and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments, recognized and accepted by the international community. These rights cannot be denied or placed in question." — Ambassador Alan Baker, Israeli legal expert.

International law has one overarching debility. No matter how complex the issues, virtually everyone able to read feels competent to offer an authoritative legal opinion. While, for example, no sane person would ever explain or perform cardio-thoracic surgery without first undergoing rigorous medical training, nearly everyone feels competent to interpret complex meanings of the law.
This debility needs to be countered, at least on a case by case basis. In the enduring controversy over Palestinian statehood, there are significant rules to be considered. For a start, on November 29, 2012, the General Assembly voted to upgrade the Palestinian Authority (PA) to the status of a "Nonmember Observer State."
Although it is widely believed by many self-defined "experts" that this elevation by United Nations has already represented a formal bestowal of legal personality, that belief is incorrect. Under law, at least, "Palestine" - whatever else one might happen to think of "fairness" - remains outside the community of sovereign states.
This juridical exclusion of "Palestine," whether welcome or not, on selective political grounds, is evident "beyond a reasonable doubt." The authoritative criteria of statehood that express this particular exclusion are long-standing and without ambiguity. Under relevant international law, a true state must always possess the following specific qualifications: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.
Moreover, the formal existence of a state is always independent of recognition by other states. According to the 1934 Convention on the Rights and Duties of States (the Montevideo Convention):

"Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit...."

It follows that even a Palestinian state that would fail to meet codified Montevideo expectations could simply declare otherwise, and then act accordingly, "to defend its integrity and independence...."
More than likely, any such "defending" would subsequently involve incessant war and terror against "Occupied Palestine," also known as Israel. The Palestine Liberation Organization (PLO) was formed in 1964, three years before there supposedly were any "Israeli Occupied Territories." What, then, exactly, was the PLO trying to "liberate?"
Whenever the PA finally decides it is time openly to declare statehood, certain explicitMontevideo standards and corollary criteria of statehood will need to be invoked.
Much as the Government of Israel, seeking to challenge any such adversarial PA declaration, will then cite correctly multiple Oslo Agreement violations. The PA will counter-argue that its particular right to declare an independent state of Palestine is nonetheless fundamental, or "peremptory." The PA will surely add as a footnote that its right of statehood according to "jus cogens" ("certain fundamental, overriding principles of international law, from which no derogation is ever permitted") simply overrides all previously-existing expectations of a just peace with Israel.

Israeli Prime Minister Yitzhak Rabin, U.S. President Bill Clinton, and PLO chairman Yasser Arafat at the Oslo Accords signing ceremony on September 13, 1993. (Image source: Vince Musi / The White House)

Undoubtedly, among other matters, the PA will cite (1) the plainly non-treaty quality of the Oslo Agreements (per definitions of "treaty" at the 1969 Vienna Convention on the Law of Treaties), and to (2) those basic and allegedly immutable human rights under international law that concern "self‑determination" and "national liberation."
Now, of course, Prime Minister Netanyahu seems to have acknowledged the eventual creation of Palestine, but, among other things, only on the seemingly prudent condition of antecedent Palestinian "demilitarization." Today, majority of Israelis have conceded that a second Arab-Palestinian state west of the Jordan River is not possible or warranted. The Jewish people also demand that the issue of the million Jewish families terrorized and expelled from Arab countries and the confiscation of all their assets; businesses, homes and 75,000 sq. mi. of Jewish owned land, must be resolved. Most of the million expelled Jews from Arab lands were resettled in Israel.
While this contingent condition may at first sound reassuring, it effectively represents little more than a contrived and ultimately impotent legal expectation. For one thing, no new state is ever under any obligation to remain "demilitarized," whatever else it may have actually agreed to during its particular pre-state incarnation. For another, there is no discernible reason to believe that "Palestine" would ever make good on any of its pre-independence promises to Israel to support the Jewish State's equally basic right to "peace and security."
For "Palestine," following formal statehood, the struggle with Israel would continue to be conceptualized as zero-sum; that is, on the corrosive assumption that absolutely any gain for Israel would represent a corresponding loss for Palestine. It could claim it was defending itself against anyone, including terrorist groups, and remain within its rights.[1]
Under the Montevideo Convention, all states are legally equal, enjoy the same rights, and have equal capacity in their exercise. The moment that the Arab PA should proceed to declare a State of Palestine, the new country could become the effective juridical equal of Israel. To best maintain its indispensable national interests in such circumstances, Israel should insist that Arab-Palestine's borders never be based upon pre-1967 lines.
A perfect core summation of such insistence is provided in the February 10, 2013 words of Israeli legal expert, Ambassador Alan Baker:

"The legality of the presence of Israel's communities in the area (Judea and Samaria) stems from the historic, indigenous, and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments, recognized and accepted by the international community. These rights cannot be denied or placed in question."

Accordingly, Israel should clearly affirm that Israeli "re-settlement activity" is in fact fully consistent with binding international law. Any contrary affirmation by a still-aspiring "Arab-Palestine" would be founded upon specious misrepresentations of this critical law. Furthermore; an Arab Palestinian state already exists in Jordan which too away while violating international law and treaties 78% of Jewish allocated land for its territory east of the Jordan River. Over 80% of the people in Jordan are Arab-Palestinians and mant of the Arabs in Judea and Samaria aka West Bank carry a Jordanian passport.

Louis René Beres is Emeritus Professor of International Law at Purdue University. His just-published new book is titled Surviving Amid Chaos: Israel's Nuclear Strategy. lberes@purdue.edu

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[1] Over the years, a number of cases in United States federal courts have rejected the idea that the PLO, as "parent" of the PA, is in any way recognizable as the legitimate core of an independent Palestinian state. Earlier, perhaps, capable Israeli lawyers and policymakers might have been able to refer to such American case law in compelling support of an argument against Palestinian statehood. Today, however, after Oslo, and after so many years of incremental Israeli recognition of PLO/PA authority as legitimate, Israel will have to base its well-founded opposition to "Palestine" on other grounds.