Some have argued that Israel is not obliged to maintain its giving up of these areas as the Palestinian Authority has never fulfilled its obligations under the relevant Oslo Accords.
By KENNETH LEVINMa’aleh Levona 370(photo credit: Marc Israel Sellem/The Jerusalem Post)
In July, the government-appointed Commission to Examine the Status of Building in Judea and Samaria issued its findings. The Levy Report, named for the head of the three-person commission, former Supreme Court justice Edmond Levy, has triggered hysterical, damning responses not only from those beyond the Jewish world that are traditionally hostile to Israel but also from much of the Left in Israel and in the American Jewish community.Its critics have labeled it contrary to international law, a blow to the two-state solution, and an assault on hopes for peace, among many condemning glosses.But as one of the report’s authors, international law expert and former Foreign Ministry legal adviser Alan Baker, was quoted as stating, the commission’s task was to “examine the situation of building in Judea and Samaria and to advise the Israeli government accordingly, and to that end had to determine the legal nature of Israel’s presence in the area. Nothing more, nothing less. No hidden political agenda.” (The third member of the commission was former Tel Aviv District Court judge Tchia Shapira.) The commission found that the establishment of Israeli communities in Judea and Samaria was consistent with international law. While it supported the legalization of so-called “illegal outposts” established without full government authorization, it criticized Israeli governments for not creating and expediting more orderly and comprehensive procedures for founding settlements, determining their boundaries, handling Israeli registration of land purchases in the West Bank, and adjudicating land disputes in the area. It offered guidelines for correcting problems related to these issues.THE LEVY Report’s findings should hardly have been surprising. The right of Jews to settle in Judea and Samaria is founded on grounds much firmer than simply arguments that the Fourth Geneva Convention does not apply to settlements because these communities do not entail forced transfer of populations.Such arguments, while entirely sound, merely offer a generic basis for maintaining that settlements are not contrary to international law.Much more specific justification comes from the original League of Nations Mandate for Palestine, which called for “close settlement by Jews on the land, including State lands” of the Mandate, and article 80 of the United Nations charter, which preserved the application of the League of Nations Mandate’s stipulations.One could argue that the Jews’ governmental body, by accepting the 1947 partition plan for Mandate Palestine, essentially gave up the right to Jewish settlement in areas not allotted to it. But the partition plan addressed issues of sovereignty, not of residence.More importantly, the Palestinian side rejected the plan and failed to establish a successor government in the areas that were to fall under its control. Subsequently, Judea and Samaria were occupied (with the killing or expulsion of all their Jewish residents) and annexed by Transjordan, which then renamed itself Jordan. But only two nations, Britain and Pakistan, recognized Jordanian sovereignty in the territories.In 1967, Jordan – as King Hussein himself acknowledged – launched hostilities against Israel, and Israel, in its response, gained control of Judea and Samaria. In effect, whatever right to settlement Israel was prepared to give up in 1947 became irrelevant when no legitimate alternative government of Judea and Samaria emerged, and so the right to settlement enshrined in the Mandate and in article 80 of the UN charter remains in force. (The absence of an alternative sovereign claimant to the land is also relevant to the Fourth Geneva Convention argument, as the Convention specifically addresses a state’s actions in the territory of another sovereign state and there is no such other state vis-a-vis Judea and Samaria.) It is also noteworthy in this context that Jordan and Israel signed a peace treaty in 1994, which established the international boundary between the two nations and entailed Jordan formally giving up any claim to Judea and Samaria.ALSO RELEVANT, if less directly so, is UN Security Council Resolution 242, adopted unanimously in the wake of the 1967 war. It calls for peace talks between Israel and its neighbors and, rather than Israel’s return to the pre-war armistice lines, for the negotiation of new “secure and recognized” boundaries. Further, the authors of Resolution 242 explicitly stated that the pre-war armistice lines made no sense as permanent borders, invited further aggression against Israel, were untenable, and ought to be replaced.Resolution 242 does not in itself strengthen the already strong legitimacy in international law of Israeli settlements.But it is relevant in several respects. First, most settlements have been established with a view toward reinforcing Israeli claims to key strategic areas in Judea and Samaria, those most germane to providing Israel with defensible borders in the context of a peace agreement. In addition, Resolution 242 does underscore the status of Judea and Samaria as disputed territory, whose ultimate disposition is to be decided by negotiations between Israel and its neighbors.Those who assert that Judea and Samaria are Palestinian territory and that Israel, by its settlements, is usurping what properly belongs to the Palestinians, are distorting the actual status of these areas in international law. (It is also noteworthy that the Palestinians have likewise created new “settlements” in previously empty areas of the territories, have done so largely without Israeli interference, and have done so with a view toward preventing Israel from establishing defensible borders.) But in fact, not all of Judea and Samaria are currently disputed territories, as Israel ceded parts of these areas to the Palestinians in the context of the Oslo process. The Oslo Accords entailed a division of these territories into Areas A, B and C. Area A was placed under full Palestinian Authority control; Area B entailed lands in which Palestinians assumed full civil authority while Israel retained responsibility for security; and Area C remained under Israeli control. Areas A and B comprise about 40 percent of Judea and Samaria and are home to about 96% of the Palestinian population of the territories.Some have argued that Israel is not obliged to maintain its giving up of these areas as the Palestinian Authority has never fulfilled its obligations under the relevant Oslo Accords. In particular, it has never recognized Israel’s right to exist, has never ended incitement promoting the murder of Israelis and delegitimization and destruction of the state, and has never abandoned terror to advance its anti-Israel agenda. But no Israeli government has sought to reverse the ceding of Areas A and B.As for the rest of Judea and Samaria, it has served Israel poorly to be silent on asserting its rights, under international law, both to security claims and to settlement there. Allowing the false assertions and accusations of the nation’s enemies to go unanswered only undermines Israel’s vital interests.Kenneth Levin is a psychiatrist and historian and author of The Oslo Syndrome: Delusions of a People under Siege.
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