Jewish settlements are legal, EU is told

A petition, containing the signatures of over 1,000 respected diplomats and legal experts from around the world, has been delivered to the EU’s foreign policy chief Catherine Ashton.

According to the text of the petition, the EU is wrong to believe that Jewish settlements in Judea and Samaria are illegal, and that the term “1967 lines” does not exist in international law.

Legal scholars from South Africa, the US, Canada, Australia, New Zealand, Taiwan, Singapore, India, Greece, Malta, Holland, Norway, Czechoslovakia, Ireland, Switzerland, Sweden, Italy, Belgium, Bolivia, Chile, Brazil, Mexico and Peru, have signed the petition.

The man responsible for the petition is British-born Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs.

It comes as the EU considers whether to introduce separate labeling for products made by Jews in Judea and Samaria, a policy that would apply to all 28 EU member states.

In an interview with Israeli news organization Arutz Sheva, Mr Baker explained why it is incorrect to distinguish between Israel and Judea and Samaria, saying there is “no such thing” as the 1967 lines.

“There never was such a thing. The matter of the borders is on the agenda of the negotiations. The EU cannot dictate a subject that is on the agenda of the negotiations. The pre-1967 lines are [1949] armistice lines. These are not recognized lines or security lines. In the Oslo process, it was agreed between us and the Palestinians that the matter of borders will be negotiated.”

He continued: “The term ‘1967 lines’ does not appear anywhere in our agreement with the Palestinians, therefore it is a legal and factual aberration to determine that these are our lines.”

Mr Baker also told Arutz Sheva that the settlements should be considered legal under international law because Jewish settlers have freely chosen to live in Judea and Samaria; they have not been forcibly transferred to the territory by the Israeli government.

Given the opportunity, I am sure Mr Baker would draw upon several other lines of argument to support the case for the Jewish settlements. In his stead, I shall attempt to outline the main legal underpinning of the Jewish communities in Judea and Samaria.

We have to go back nearly a hundred years to discover the origin of the settlements’ legality. Firstly, there was the 1920 San Remo conference, in which Britain (following the collapse of the Ottoman empire) was instructed to establish a Jewish national home on territory covering what would become Israel, Jordan and part of the Golan Heights.

Then came the British Mandate for Palestine, a legal commission established and confirmed by the League of Nations (an early version of the UN) in 1922, which formalized the creation of two states – a Jewish homeland in “Palestine” and an Arab homeland called Transjordan (now simply Jordan).

Significantly, the Mandate not only legalized the immigration of Jews to Palestine, it encouraged close settlement of all the land, including Judea and Samaria.

Two years after the Second World War, the British handed the Mandate to the UN, which recommended (rather than enforced) a partition of the nascent Jewish homeland. Despite already having Transjordan, the Arabs rejected the offer of partition and declared war on the Palestinian Jews. This resulted in the Jordanian annexation of Judea and Samaria (and renamed the West Bank). At the insistence of the Arabs, the 1949 armistice line was “not to be construed in any sense as a political or territorial boundary.”

In 1967, Israel won control of the West Bank after a war of self-defense. UN Security Council Resolution 242 recommended Israeli withdrawal from territories in return for the right “to live in peace within secure and recognized boundaries free from threats or acts of force.” At a conference in Khartoum the Arabs refused to negotiate or make peace with Israel. In fact, they refused to recognize Israel at all.

Israel’s critics sometimes employ the Fourth Geneva Convention to argue that the settlements are illegal. But the Fourth Geneva Convention pertains only to cases of occupation of a sovereign entity. Because of the Arab refusal to reach an agreement in 1948, the West Bank never became the legal territory of any sovereign entity, not even Jordan.

A territory is only occupied if it is captured in war from an established and recognized sovereign. Jordan was never an established or recognized sovereign of the West Bank. Therefore, Israel is not an occupier and the West Bank is not occupied land.

As such, Judea and Samaria is unclaimed Mandate land and should therefore be referred to as “disputed” territory. Israel’s capture of the West Bank in 1967 merely restored the territory to its legal status under the Mandate of 1922, which has never been superseded in law, not even by the 1947 partition plan.

In short, the settlers are simply enacting the Mandate and they should be allowed to continue with this enterprise without interference or condemnation. This legal truth should form a core part of the negotiations between Israel and the Palestinians.