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Jewish Settlements in "the Territories" Aren't the Problem By: Chaim Herzog
FrontPageMagazine.com | Wednesday, April 09, 2003


The following speech was originally delivered on the floor of the United Nations by the late Chaim Herzog, Israeli Ambassador to the UN (1975-78).  It is as relevant today as when it was first made.

WE HAVE recently witnessed an attempt to focus atten- tion 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 havce 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.

First, it should be recalled that seven Arab armies, including the Transjordanian Legion, invaded Palestine on May 15, 1948, with the avowed purpose of destroying the State of Israel at its birth. As was stated by a Soviet delegate in the Security Council at the time:

". .. . an armed struggle is taking place in Palestine as a result of the unlawful invasion by a number of states of the territory of Palestine, which does not form part of the territory of any of the states whose armed forces have invaded it."(1)

Because of the aggressive character of their invasion of Palestine, the invading states could not. acquire rights or sovereignty over the territories which they occupied. U.S. Representative Warren Austin termed the Jordanian invasion of Judea and Samaria (the West Bank) "the highest type of the international violation of the law."

The rights of the invading states in the territories of the former Palestine Mandate occupied by them were, therefore, at the most the rights of an occupant without any authority to annex the occupied territory.. Jordan's unilateral "annexation" of Judea and Samaria (the West Bank) in 1950 had, therefore, no basis or validity in international law. The Jordanian "annexation" never received international sanction: only Britain, which at the time was the real power behind Abdullah's Jordan, and Pakistan granted recognition to this Jordanian measure, and even Britain excluded East Jerusalem from its recognition. The member states of the Arab League went so far as to threaten Jordan with expulsion from their ranks because of that "annexation."

In 1967 Israel was again the victim of aggression as Arab leaders openly vowed to annihilate Israel. Egypt blockaded the Straits of Tiran and moved its armies into Sinai while Jordan ignored Israel's advice to keep out of the war and launched a military attack on Israel, shelling towns and villages, including the Holy City of Jerusalem.

When the Israel Defense Forces entered Judea and Samaria (the West Bank) in June 1967-in the course of repelling the renewed Jordanian aggression-they ousted from these territories not the armies of the "legitimate sovereign," but illegal invaders who enjoyed, at the most, the rights of au occupant. However, the rights of an occupant are self-terminating upon the conclusion of the occupation, and no rights remain in the hands of the former occupant thereafter.

Since Jordan never was a "legitimate soveteign" 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).

A similar conclusion can be inferred from a reading of Professor Stephen H. Schwebel's article, published in 1970 in the American Journal of International Law, where he wrote:

"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 pointed out in the same article that it is a principle of international law that although a country's right to a territory cannot be based on conquest, other applicable principles are that "no legal right shall spring from a wrong," and that members of the United Nations shall not employ "the threat or use of force against the territorial integrity or political independence of any state." In his article Professor Schwebel concluded that Jordan and Egypt annexed territory in 1948 through "aggressive conquest," which was unlawful, but that Israel's conquests in 1967 were "defensive" ones.

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.

The state of the law has been correctly summarized by Elihu Lauterpacht, a distinguished authority on international law, as follows:

"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)

A measure of the rather superficial manner in which the entire problem has been approached can be gauged from the fact that most statements lump together all the territories, although their international legal status is entirely different one from the other. The fallacy in this argument has been pointed out by Alfred L. Atherton, Jr., Assistant Secretary of State for the Near East and South Asia, in testimony before the House International Relations Subcommittees on International Organization and on Europe and the Middle East. There he drew a clear distinction between the legal status of Sinai and the Golan on the one hand (Egypt has never made a sovereign claim to the Gaza Strip), and that of the West Bank:

"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."

In sum, ProfessoL Schwebel, now with the U.S. State Department, stated that from an international legal point of view, "Israel has better title in the territory that was Palestine, including the whole of Jerusalem than do Jordan and Egypt," while the Assistant Secretary of State for the Near East and South Asia, whose government had, incidentally, previously suggested that such settlement was illegal, admitted under congressional examination that the question of sovereignty in the West Bank and Gaza 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.

This conclusion finds expression in the leading treatise on the subject:

"The occupying power must not deport or transfer parts of its own civilian population into the territory occupied by him - a prohibition intended to cover cases of the occupant bringing in its nationals for the purpose of displacing the population of the occupied territory."(3)

Article 49 must be understood against the background of World War II. It was aimed in part against such horrors as the barbarous extermination camps in occupied Europe to which Jews and others were taken by the Nazis and in part against the displacement of the local population with a view to making room for the German invaders.

Bearing in mind both the provisions of the article and its legislative history, it is clear that the situation envisaged by Article 49 does not apply to the Jewish settlements in question. No Arab inhabitants have been displaced by these peaceful villages and townships. According to international law, therefore, the Israeli settlements are .not "illegal," because Israel has better title legally to this area of the West Bank and Gaza than any other country. ('Furthermore, many of the settlements under discussion were established within the framework of the security requirements of Israel as seen by its government.

It is conveniently forgotten that the Arab states maintain that a state of war exists with Israel. Nevertheless, when Israel takes steps to ensure its security, they are deplored. As long as its neighbors maintain that a state of war exists, it is the duty of the Israeli government-a duty which is clearly recognized in international law-to do what it sees fit to protect its inhabitants. Israel certainly cannot be expected to pretend that time stands still and to ignore its security requirements while the world waits until this or that Arab leader deigns to open negotiations instead of sending his delegate to the UN to engage in name-calling and abuse.

In this connection it should be rioted that other political and 'i\,;juridical questions also exist. For example, recognized political and juridical questions also exist. For instance, recognized political borders between Israel and its Arab neighbors have never existed. Since the wars of 1967 and 1973, special agreements are in force until the achievement of a "just and lasting peace" as required by Security Council resolutions 242 and 338, a peace intended inter alia, to establish secure and recognized borders.

There is, however, still a further aspect to the question of the settlements which has been totally overlooked. For centuries Jews have owned land in Judea, Samaria and Gaza, and have of course lived there. They lived on these lands during the period of the Ottoman Empire and the British Mandate. They were driven out by Jordanian and Egyptian aggression, which was not recognized by the Arab international community, let alone by the general international community. If one subscribes to the notion that for a Jew to settle on land which he owns, wherever it may be, has no legal validity for the simple reason that he is a Jew, then one is in fact subscribing to the hateful Nazi Nuremberg Laws-many of which apply today in the racist legal codes of the Arab countries. Let us consider, for example, the Jordanian citizenship law No.6 of February 4, 1954, whereby Jordanian nationality is granted to residents of Judea and Samaria (the West Bank), which had been illegally annexed to Jordan. Paragraph 3 of this law states: "Any man will be a Jordanian subject. . . (3) if he is not Jewish." In addition, a comparatively recent law notes that sale of land to a Jew is punishable by death.

Now it has been suggested that a Jew, by virtue of being a Jew, and for no other reason, cannot settle on land which he and his family own and have owned for tens and perhaps hundreds of years. There are settlements on Jewish-owned land in the Hebron Hills, in the Gaza Strip, in the Jordan Valley, by the Dead Sea.

What the UN resolution on the settlements demands is that I be forbidden to settle on land of a village in the Hebron Hills, Masuoth Yitzchak, which bears my late father's name and which is Jewish-owned, for one reason and one reason only: because I happen to be a member of the Jewish people. This is the vicious anti-Semitic Nazi philosophy behind the Jordanian citizenship laws and behind the UN resolution on the settlements. It is particularly disturbing that European countries which arose out of the ashes of post-Nazi Germany have supported a prohibition which amounts to an extension of the Nuremberg Laws.

It has been claimed that the settlements are being established at the expense of expropriated Arab lands. This is untrue. The overwhelming majority of settlements have been set up on government and public land that was barren, rock-strewn hillsides and deserts for centuries. In the very few instances where private land was involved, it was acquired for public purposes in accordance with Jordanian law, which applies in Judea and Samaria (the West Bank), and against full compensation. Similar laws providing for acquisition of land for public purposes exist in Israel and in most other countries.

In all cases of such land acquisition, any owner who feels aggrieved, or feels that the compensation is insufficient, has right of access to the Israeli Supreme Court, sitting as the high court of justice. This Court can and does issue writs against the government or the military authorities whenever it feels that any person, including residents of the territories, has a legitimate grievance. In a number of instances the Court has found against the authorities and redressed the plaintiffs.

Perhaps the most preposterous assertion of all in the United Nations resolution is that the Jewish settlements constitute "demographic changes." This new international slogan, which attempts to mask Arab racist anti-Jewish policy, has unfortunately been adopted by gullible spokesmen of many countries whose philosophy is far removed from such racism and racist philosophy.

What it means is that it is wrong for Jews to live among and with Arabs, because they are Jews. If 50,000 Arabs have returned to the territories since 1967 under the family reunion scheme and the total population of the territories has increased by 17.4 percent in the last ten years, that is not considered a "demographic change." If the Arab population of Israel has grown from 150,000 in 1949 to 55o,000 today, that is not considered a "demo-graphic change." But if a total of approximately 6,000 Jews settle in Judea, Samaria (the West Bank), Sinai, Gaza and Golan, in an area populated by 1.25 million Arabs, this is termed a "demographic change." When approximately 2,500 Jews settled in an area populated by 750,000 Arabs in Judea and Samaria (the West Bank), and not one life was lost thereby or one person dispossessed, the United Nations saw fit to ignore all the tragedies besetting this world in order to express its concern about what it calls "demographic changes." Over 500,000 Arabs live in Israel in a predominantly Jewish population side by side with their Jewish neighbors. But it is apparently considered wrong for a few thousand Jews to live in a predominantly Arab population.

The racist philosophy behind these claims is the same that calls for the exclusion of all non-Arab elements from the Middle East: the Christians from Lebanon, the Assyrians and the Kurds from Iraq, the Jews from the Arab world, the Jews from Israel, the Christians from southern Sudan, the Copts from Egypt, and so on. This philosophy was summed up by Yasser Arafat in his organization's Nazi covenant that calls for the destruction of a nation: "There will be no presence in the region other then the Arab presence." The prohibition on Israeli settlement amounts to an endorsement of the Nazi racist philosophy of creating an area that is Judenrein - "free of Jews." It is sad to see nations which suffered from the Nazi yoke and oppression now supporting the resurrection of this hated anti-Semitic thesis which brought a holocaust and tragedy to the world.

Israel, on the contrary, believes that the fruitful coexistence between Jews and 500,000 Arabs in Israel and 1.25 million Arabs in the territories has created a bridge to the Arab world. By living together with this Arab population, Israel has established a daily dialogue with a major element of the Palestinian Arabs. It has brought about a greater degree of mutual understanding than has ever been achieved before, and has developed daily grassroots Arab-Jewish cooperation in all fields of human endeavor" medicine, agriculture, commerce, politics and science.

Thus, Israel has created the foundations from which to advance further towards the solution of the Palestine Arab problem on a basis of growing understanding.

Israel believes that the only effective way of bridging the gap between Jew and Arab in the Middle East is by the peoples maintaining a continuous dialogue and learning to live side by side. Only then can a bridge to peace be established, lt will certainly not be built by a slavish pandering to the basic racist and anti-Semitic philosophy which calls for the establishment in this age of Jew-free areas from which individuals are to be excluded solely because they are Jews.

Finally, it has been alleged that the establishment of settlements is an obstacle to peace. This allegation is a cynical falsification of history.

For nineteen years, from 1948 to 1967, Israel was not establishing settlements in Judea, Samaria, Gaza, Sinai and Golan, because Israel was not in those places. There was no such "obstacle" from 1948 to 1967, yet the Arabs refused even to talk about peace. Not only was Israel not in the territories; Jordan and Egypt were there. Israel was not establishing settlements and bringing agricultural progress to these areas. Nor, indeed, did Egypt and Jordan take advantage of their presence to establish farms and settlements. They let those territories languish in disease and poverty (30 percent unemployment, indescribable conditions in impoverished refugee camps, etc.) . They were in control of the West Bank and Gaza, but they did not permit the establishment of a Palestinian state because then, as now, they did not want one. Jordan saw itself rightly to be the Palestinian state, which it is. The Arabs, who were in control of the West Bank and Gaza and could have established a PLO-controlled Palestinian state, formed the PLO in 1964 not over the issue of the settlements in Judea and Samaria (the West Bank) or Gaza. That is - and never was - central. The issue was and is Jewish settlement in Israel. The issue is not Kaddum or Etzion or Regavim or Yamit or Ramat Magshimim. The issue is Tel Aviv or Haifa, as the representative of the PLO has said in the United Nations itself. The issue has been and is every settlement Israel has ever established wherever it may be - in the Galilee, in the Negev, in the Gilboa, in the Sharon, in Judea, in Samaria and in the coastal plain. If that this is not a political issue was made crystal-clear by ,Israel’s Foreign Minister Moshe Dayan in the United Nations General Assembly: "The settlements will not decide the final borders between Israeland,its neighbors. The borders will be decided upon in negotiations between Israel and its neighbors. The settlements are by no means an obstacle to peace, because if they were, we should have had peace years ago." There is no connection between the progress towards a Middle East peace agreement and the establishment of settlements. The settlement issue is simply a device to cover up for the Arab states' stubborn refusal to negotiate with Israel, whose destruction many of them seek. The recent course of events in the Middle East proves that the settlements have in no way hindered progress towards agreements. The disengagement agreements with Egypt and Syria were reached without the settlements being mentioned at all.

The negotiations relating to the reconvening of the Geneva Peace Conference were not related to the settlements. They concerned such questions as that of Palestinian representation, the number of delegations, etc. These problems would have to be discussed even if there were not a single Jewish settlement in the Israeli-administered areas. As observed by Professor Fred Gottheil of the University of Illinois, at the House of Representatives hearings, on September 12, 1977: "Jewish settlements are an issue because the existence of the State of Israel is an issue."

In these territories, Jewish history began four thousand years ago and has continued uninterrupted.

Long before most of the nations of the world even dreamed of statehood, a great Jewish civilization was flourishing in the cities and villages of J udea and Samaria. The judges of Israel dispensed justice in Jerusalem on the basis of one of the most advanced and enlightened codes of law in history. Hebron is the burial place of the Jewish Patriarchs to this day and it was there that King David ruled until he moved his capital to Jerusalem.

The Kingdom of Israel was centered upon the hills of Judea and Samaria. The Biblical name of Samaria is Shomron, and it was the capital of the ancient Kingdom of Israel.

For Jews, the Bible is not just something one teaches at Sunday School. It is, rather, a record of the living experience of a people which has continued in an unbroken chain of history of greatness, of tragedy, of unparalleled human contribution, of struggle for existence against overwhelming odds, and always of triumph and advance.

The fact is that the settlements are a side issue, as President Sadat himself admitted on ABC television in an interview on August 4, 1977. When asked about the settlements, he stated: "Well, in my opinion, this is a side issue." They are certainly not an obstacle to peace. The obstacle to peace is the Arab re- fusal to recognize the Jewish people's right to sovereignty in its ancient homeland. The obstacle to peace is an implacable Arab refusal to recognize Israel, to negotiate with Israel, to make peace with Israel. The obstacle to peace is the refusal of the Arab countries to sit down at the negotiating table with Israel.(4)

The obstacle to peace lies in the failure of world leadership and opinion to insist that both sides sit down and negotiate face to face. The obstacle to peace lies in the encouragement given to Arab intransigence because of reasons of expediency. The obstacle to peace is a basic Arab attitude and until that attitude is changed, no real advance towards peace can be made. These are the obstacles to peace and any attempt to point a finger at Israel's actions and to characterize them as obstacles to peace is untrue and baseless and is nothing but a grave misinterpretation of events in the Middle East.

The Arab states must learn that they will not be able to change the legal status, the geographical nature and the demographic composition of the territories by pushing through yet another anti-Israel resolution at the United Nations. They will only be able to obtain changes by fulfilling Resolution 242 and negotiating secure and recognized boundaries with Israel.

As the late UN Secretary-General Dag Hammarskjold once said: "You can condemn a state or you can negotiate with it but you cannot do both." By that criterion, the condemnation of Israel on the settlements in the General Assembly constitutes a retrograde step which only further poisons the atmosphere and prejudices the prospects for peace.

ENDNOTES:

1. Vassili Tarasenko, Ukrainian Socialist Soviet Republic, Security Council May 27, 1948.

2. Lecture by Lauterpacht to the Anglo-Israel Association, "Jerusalem and

the Holy Places," published by the association as a pamphlet (London, October 1968), p. 52.

3. Lassa Oppenheim, International Law, ed. by H. Lauterpacht. Vol. II Disputes, War and Neutrality, 7th ed. (New York: McKay, 1952), p. 452.

4. This statement was immediately vindicated by developments following President Sadat's visit to Jerusalem.


The late Chaim Herzog (1918-1997) was Israeli Ambassador to the UN from 1975-1978, where he fought the resolution equating Zionism with racism. He also served as the sixth President of Israel (in the Labor Party) from 1983-1993.


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