For nearly four decades the International Committee of the Red Cross (ICRC) has carried on a relentless battle against the right of Jews to live in Yehuda, Shomron, and Aza (YeShA). Declaring all Jewish presence beyond the 1949 Armistice lines "illegal," they condemn Israel for violating the Fourth Geneva Convention (GC IV). Acting as judge and jury in secret deliberations, they decided that Israel was guilty. And, despite objections from distinguished international legal experts, the ICRC refused to consider any appeal. There's only one problem: they made up 'the law' to fit their politics.
Several years ago, the International Court of Justice (ICJ) joined this effort by declaring Israel's 'security barrier' and all Israeli settlements "illegal" because they were built beyond the boundaries of 1949 on "occupied Palestinian territory." That territory was never defined; it couldn’t, since there is no such entity. And their conclusions ignored the facts.
Divided between two terrorist organizations, Fatah and Hamas, the Palestinian Authority is not a state, nor does it comply with the recognized attributes of statehood. Defining "Palestine" as a single unit between the Mediterranean and the Jordan River, most Arabs agree that Israel has no right to exist. "The Nakba" (Catastrophe) was not in 1967, but 1948.
The ICJ, which includes former ambassadors of Jordan and Egypt, didn't consider any Israeli arguments (according to one of its members); in fact, Israel refused to participate in the charade, knowing the outcome had already been determined.
In other words, unlike domestic law which is made by legislatures and administrative bodies, the ICJ's decisions, as international "law," reflected political bodies (like the UN), or NGO's (like the ICRC) who are accountable only to themselves and whose criteria for decision-making when it comes to Israel lack objectivity, impartiality, or careful evaluation. Yet, that became "the law."
Charges that Israel "occupies Palestinian land" and "settlements are illegal" feed the myth that 'Jews stole Arab lands' and that 'Palestinians were forced to pay the price for The Holocaust.' Such unwarranted condemnations of Israel are elements in the volatile chemistry of demonization; they delegitimize and dehumanize Jews as perpetrators of lies and the cause of others' suffering, justify terrorism and may even become a prelude to genocide. In a modern rendition of blood libel, if Jews are evil it justifies whatever is done to them.
Denying the legal and historical rights of Jews to live in their homeland and refusing to recognize Jewish rights of self-defense is not only bigoted and immoral; in the context of terrorism, it's lethal.
Occupation, in and of itself, moreover, is not "illegal." International law recognizes the right of any state to occupy territory of an aggressor in self-defense and to remain in control to protect itself and until its security is assured. Jewish claims, however, rest on other grounds.
The historical right of Jews to their homeland in the Land of Israel was recognized in international conventions and agreements, including the League of Nations and the United Nations. Those confirmations cannot be abrogated – by anyone.
The Jewish people did not occupy territory of a legitimate and recognized sovereign authority. In wars of self-defense, Israel occupied territory that had been controlled by the British (the Mandate) and/or conquered by the Jordanians and Egyptians (along with other Arab countries) who declared a genocidal war against Jews.
The Fourth Geneva Convention does not prohibit Jews from living in YeShA. It states:
"Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand…
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."
Israelis moved to YeShA voluntarily; no one was 'deported or transferred.' In fact, the Israeli government often resisted such settlement. Nevertheless, the ICRC and ICJ declared that Jewish communities in YeShA are violations of GC IV, adding their own conditions -- that any assistance given by the Israeli government was an indirect transfer. That ruling is not supported by the Convention, or its context. Even if GC IV were applicable to YeShA, it was never intended to prevent Jews from building there.
Article 2 of GC IV states: "The Convention shall also apply to all cases of partial or total occupation of a High Contracting Party…"
The occupation of YeShA (the territories) by Jordan and Egypt, however, was never recognized – even by the Arabs. This part of the Convention, therefore, by its own requirements doesn't apply. At no time was "Palestine" a state, or a political entity.
Since the Oslo Agreements specifically mentioned that borders and settlements were to be negotiated at a later stage, there exists a legal basis, under international law, for the existence and expansion of settlements until otherwise determined by agreement between Israel and the PA.
Moshe Dann, a former asst professor of History (CUNY), is a journalist and writer living in Israel.