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News and views on Israel, Zionism and the war on terrorism.

April 09, 2003

Jewish Settlements in "the Territories" Aren't the Problem

Plus ca change

When the Security Council was debating a resolution in the seventies to declare the settlements illegal, Chaim Herzog delivered a definitive speech on the legality of both the occupation and the settlements.

It is as relevant today as when it was first made. I have extracted certain paragraphs to whet your appetite.
WE HAVE recently witnessed an attempt to focus attention on a side issue which is not central to the real problems in the Middle East and irrelevant for any future peace agreement. Jewish settlements in the administered areas, which have not wrongfully dispossessed a single Arab, which have not cost a single life, and which were never an issue in the Middle East conflict, have now become the focal point for worldwide alarm and condemnation. It has been declared that Jewish settlements beyond the 1967 borders are "illegal," that they have brought about "demographic changes" in the territories and that they constitute an "obstacle to peace" in the area. In October 1977 the General Assembly of the United Nations passed a resolution to this effect. It is necessary therefore to examine each of the allegations in turn in order to expose the insidious intentions behind the current preoccupation with this issue.

[...]Since Jordan never was a "legitimate sovereign" in Judea and Samaria (the West Bank), the provisions of the Fourth Geneva Convention-including those of its Article 49, which were intended to protect the rights of the "legitimate sovereign"-do not apply in respect of Jordan. Therefore, Israel is not affected by those provisions, and need not consider itself to be restricted by them. In other words, Israel cannot be considered an "occupying power," within the meaning of the Convention, in any part of the former Palestine Mandate, including Judea and Samaria (the West Bank).

[...]"Having regard to the consideration that. . . Israel [acted] defensively in 1948 and 1967 . . . and her Arab neighbours . . . [acted] aggressively in 1948 and 1967 . . . Israel has better title in the territory that was Palestine, including the whole of Jerusalem, than do Jordan and Egypt."

[...]Professor Schwebel, in his 1970 article, also emphasized three points about "defensive conquests." First, a state may lawfully seize and occupy foreign territory if "necessary to its self-defense." Second, a state may require, before it withdraws from territory occupied in a defensive conquest, that satisfactory security arrangements be established to safeguard its security. Third, the state that holds territory through lawful defensive conquest has, vis-a-vis the prior occupant that acquired the territory through unlawful offensive conquest, better title to the land.

[...]"Territorial change cannot properly take place as a result of the unlawful use of force. But to omit the word ‘unlawful’ is to change the substantive content of the rule and to turn an important safeguard of legal principle into an aggressor's charter. For if force can never be used to effect lawful territorial change, then, if territory has once changed hands as a result of the unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. This cannot be regarded as reasonable or correct."(2)

[...]"In the West Bank and Gaza, however, the situation is different. Both of these territories were part of the British Mandate of Palestine. While the legitimate existence of a sovereign Israel in part of Palestine is recognized, the question of sovereignty in the part of Palestine remaining outside of Israel under the 1949 armistice agreements has not been finally resolved."

[...]The legal case against Israeli settlements has generally been based on the provisions of the Fourth Geneva Convention. A reading of that document, however, makes it quite clear that it is not applicable to the territories. The Fourth Geneva Convention, where it might be applied (to my knowledge it has never formally been applied anywhere in the world) is intended for short-term military occupation and is not relevant to the sui generis situation in this area. Moreover, even were the laws of belligerent occupancy applicable, these rules, including the 1907 Hague Regulations, contain no restriction on the freedom of persons to take up residence in the areas involved.

[...]It has been claimed, however, that Article 49 of the Fourth Geneva Convention is pertinent here. From the overall reading of Article 49 it is evident that its purpose is to protect the local population from deportation and displacement. Paragraph 6 must be read in the light of the general purpose of the article. It thus becomes apparent that the movement of population into the territory under control is prohibited only to the extent that it involved the displacement of the local population
It is a very important speech dealing with the law regarding occupation and settlements. Read it.