Analysis: Are the Israeli settlements legal under international law?

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Rachel Avraham explains the history behind why Israeli communities exist in the West Bank and East Jerusalem, why the world is opposed to it and why Israel is passionately standing behind their position.

From Rachel Avraham/Jerusalemonline:

Amona outpost Photo Credit: Noam Moskowitz/Flash 90

After the UN Security Council declared Israeli settlements to be illegal and US Secretary of State John Kerry laid out the Obama administration’s vision for Middle East peace, many readers are probably pondering the history behind why Israelis live in communities in the West Bank and East Jerusalem, why the world is opposed to it and why Israel is passionately standing behind their position despite international objections to such a position.  In order to fully understand the issue, one must understand that Israeli officials always site that there is Jewish history in the West Bank dating back to antiquity that predates Arab history in the area by thousands of years.

According to left wing Israeli historian Benny Morris, in ancient times, “the core of the Jewish state was the hill country of Judea, Samaria and the Galilee.”  Except for the Galilee, all of these areas are located over the green line.  Areas in mainland Israel such as Ashkelon, Caesarea and Jaffa were centers for paganism during the Hellenistic and Roman periods.  Tel Aviv, where many countries decided to place their embassies, was not built yet.  Given this history, Israeli Prime Minister Benjamin Netanyahu viewed the UN Security Council to be a rejection of Israeli statehood en par with the “Zionism is racism resolution” because without having the right to build in such historic Jewish areas, the idea of Israel as a Jewish state is meaningless from his worldview.

In order to further grasp this point, one should examine Jewish history in Hebron. Hebron possesses the oldest Jewish community in the world and is the second holiest city in the Jewish faith after Jerusalem. Hebron is mentioned 87 times in the Jewish Bible. Genesis 23 speaks about how Avraham, the forefather of the Jewish nation, bought a burial tomb for his wife Sarah within the city.  According to the Jewish tradition, not only Avraham, Sarah, Yitzhak, Rivka, Leah and Yaakov are buried there but also Adam and Eve. Before King David conquered Jerusalem and made it the eternal capital city of the Jewish people, he ruled Israel from this city for 7 years. During the Jewish Revolt against Rome, even though there was extensive fighting within the city, Jews continued to live in the area throughout the Byzantine and Arab periods.

According to Benjamin of Toledo, fighting between the Crusaders and the forces of Saladin completely destroyed the city and the Jews were expelled from the area.  However, by the time of Nachmanides in 1257, some Jews had returned to Hebron.  Yet in 1517, the Jews of Hebron would suffer from a violent pogrom, which included the mass murder, rape and plundering of Jewish households.  Nevertheless, following the Spanish Inquisition, the Jewish community of Hebron was rebuilt. Jews continued to live in the city throughout the Ottoman period even though in 1775, the local Jews would suffer from a blood libel accusation, where they were falsely accused of murdering a local sheikh and forced to pay blood money.  Nevertheless, despite this stumbling block, Hebron was a major center for Jewish learning up until the 1929 massacre, which resulted in the slaughter of 67 people and the forceful expulsion of Jews from the city. Following the 1967 War, Jews returned to Hebron and due to this history, remain strongly attached to the city, both spiritually, politically and religiously, even though the city is located over the 1967 Armistice Lines.  Nevertheless, for US Secretary of State John Kerry, building homes inside Hebron’s Jewish Quarter that constitutes 3% of the entire city and maintaining the Tomb of the Patriarchs, the second holiest site in Judaism, amounts to settlement construction.

Bethlehem, another major city in the West Bank, also has important Jewish significance. The matriarch Rachel is buried there. Her tomb is the third holiest site in the Jewish faith after the Temple Mount and the Tomb of the Patriarchs. Jews have historically prayed at the site for the last 3,000 years. Whenever the Jewish people faced sorrows throughout their history, they have traditionally prayed at Rachel’s Tomb, believing that her tears towards G-d have special powers. According to the Jewish belief, she was buried in Bethlehem on the road instead of in the Tomb of the Patriarchs because the Jewish people would need her prayers as they traveled into exile in Babylon.

Until the modern era, the Muslims also considered Rachel’s Tomb to be a Jewish holy site. Sixteenth century Arab historian Mujir Al Din wrote that Rachel’s Tomb was a Jewish holy site, a statement that is confirmed by Ottoman Turkish official documents, who barred locals from interfering with traditional Jewish worship at the holy site.  Aside from this history, King David was born in Bethlehem and was anointed King of Israel within the city of his birth. In addition, King David’s ancestors Ruth and Boaz were married within Bethlehem.  However, the city is not located within the 1967 Armistice Lines. Nevertheless, given this history, Israel has decided to build a wall around Rachel’s Tomb and to create special access roads to the holy site so that the Palestinians won’t be able to desecrate it and to restrict Jewish worship in the area. For US Secretary of State John Kerry, securing Rachel’s Tomb in the middle of Bethlehem from desecration by Arabs who have tried to attack the holy site on numerous occasions constitutes settlement construction.

Nablus, which is known in Hebrew as Shechem, is the burial site of Joseph according to the Book of Joshua.  This is the very same biblical Joseph son of Yaakov who was known for his colorful robe that won the envy of his brothers, who were sold into slavery in Egypt by his very own family only to rise to become the second most powerful person within the country once a famine occurred and he offered the only viable solution to struggle with it. According to the Jewish tradition, his bones were brought up to Israel from Egypt during the Exodus story and Shechem has been his resting place ever since. Furthermore, the early Church historian Eusebius, Arab geographers and even British calligraphers from the 19th century all agreed with the ancient Jewish sources that Shechem is the resting place of Joseph. However, should Israel ever try to prevent Palestinians from waging arson attacks upon Joseph’s Tomb by securing the area and rebuilding it after it has been desecrated numerous times by the Palestinians, US Secretary of State John Kerry would consider this to be settlement construction as well.

These important cities in the West Bank that hold great Jewish significance don’t even include East Jerusalem, where the Temple Mount and the Old City’s Jewish Quarter are located.   This area has more Jewish history than any other location on the face of the earth and is the holiest city in the Jewish faith.  From Netanyahu’s perspective, to rob Jerusalem of its Jewish identity is like to deprive Mecca of its Islamic connection and to boot the Vatican out of Rome. Jerusalem has been the eternal capital city of the Jewish people since the times of King David. Jews around the world pray facing Jerusalem, Jewish grooms break a glass on their wedding day in remembrance of Jerusalem and during the Passover Seder, Jews proclaim: “Next year in Jerusalem.” As Psalms 137 declare: “If I forget Jerusalem, let my right hand forget its skill. May my tongue cling to my pallet, if I do not remember you, if I do not bring up Jerusalem at the beginning of my joy.”

According to the Jewish tradition, the Temple Mount, where both the First and Second Temples stood, is the site where G-d commanded Avraham to sacrifice his son Yitzhak. It is the site where Yaakov had his dream with the ladder. Since the Second Temple was destroyed, Jews around the world have been lamenting its destruction at the Western Wall, which contains the retaining wall of the historic Jewish Temple. It is a Jewish tradition to place notes to G-d at this important holy site. Other important Jewish holy sites in Jerusalem that are located over the green line include the famous Hurva Synagogue that dates back to the 18th century; the Ramban Synagogue that dates back to 1297; the Four Sephardic Synagogues; the Beit El Synagogue which dates back to 1737; the ancient Jewish graves on the Mount of Olives that includes tombstones dating back to the First Temple period; the City of David Archeological Park that includes King David’s Palace; the Tomb of Simon the Just; and the list just goes on. Any kind of work on any of these holy places according to the UN Security Council Resolution is illegal and from Kerry’s point of view constitutes settlement construction.

However, from Israel’s standpoint, given all of this rich Jewish history in the area, it is as natural to build over the green line as it is for Americans to build in Washington, DC, for French people to build in Paris and for Russians to build in Moscow. Furthermore, from a security perspective, they argue that having Jews living over the green line assists Israeli security for it helps to ensure that Israel will never be compelled to withdraw to what numerous individuals in the Israeli establishment view to be the indefensible Auschwitz borders. In order to highlight this point, they stress that Netanya is located 10 miles from the West Bank city of Tulkarem. Without the existence of Israeli settlers and soldiers in the area, Israeli officials note that the Palestinians can easily fire rockets on Netanya in the same way that they fire rockets on Sderot.  Furthermore, other cities such as Tel Aviv and Ben-Gurion International Airport will also be in rocket range from the West Bank.  Combined with the terror threat emanating from Gaza, Lebanon, Syria and the Sinai, numerous individuals in the Israeli security establishment are simply not prepared to withdraw to borders that leave Israel in an indefensible position especially if a Palestinian state led by terror organisations comes into fruition in the absence of a peace agreement with Israel.

In response to this sentiment, the UN Security Council claimed that Israeli settlements are illegal based upon the fact that the Fourth Geneva Convention prevents the forcible transfer of the people in one state to another as a result of war.  They also argue that Israeli settlement activities alter the demographic composition of the area, thus making a two-state solution impossible.  As the text of the UN Security Council resolution proclaimed, “Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice, Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions, Expressing grave concern that continuing Israeli settlement activities are dangerously imperiling the viability of the two-State solution based on the 1967 lines.” Israeli officials highlight that the UN Security Council did not mention how Palestinian incitement and recent terror attacks have imposed an even greater impediment for the establishment of a Palestinian state than synagogues, homes, businesses and schools located over the green line could ever dream of doing.

US Secretary of State John Kerry also appears to think that the settlements are an obstacle to peace and make the two-state solution very difficult to implement: “The facts speak for themselves. The number of settlers in the roughly 130 Israeli settlements east of the 1967 lines has steadily grown. The settler population in the West Bank alone not including East Jerusalem has increased by nearly 270,000 since Oslo including 100,000 just since 2009 when President Obama’s term began. This is not to say that the settlements are the whole or even primary cause of the conflict. Of course, they are not. Nor can you say that if they were removed, you would have peace without a broader agreement. You would not. And we understand that in a final status agreement, certain settlements would become part of Israel to account for the changes that have occurred over the last 49 years including the new demographic realities on the ground. But if more and more settlers are moving into the middle of Palestinian areas, it is going to be that much harder to separate, that much harder to imagine transferring sovereignty and that is exactly the outcome that some are accelerating.”

However, supporters of Israel often point out that the Fourth Geneva Convention specifically refer to belligerent occupations and the forceful transfer of people, not the voluntary transfer of civilians to areas that previously belonged to the Jewish people throughout the history that were recaptured during a war of self-defense.   They emphasize that Israel only regained the areas after the 1967 War, which was initiated only after Egyptian and Syrian troops amassed along the Israeli border, former Egyptian President Abdul Gamal Nasser ordered the withdrawal of UN forces, closed off the Straits of Tiran to Israeli shipping and engaged in incitement on a daily basis and Jordanian forces attacked Israel. Furthermore, they note that the Mandate for Palestine that includes Judea and Samaria as well as East Jerusalem, which was incorporated into international law by the League of Nations at the Sam Remo Conference in 1922, recognized “the historical connection of the Jewish people with Palestine” and sought to “encourage close settlement by Jews on the land.” According to a UN resolution, all League of Nations resolutions are also valid for the UN.

Rachel Avraham

In addition, when Jordan conquered the West Bank and Egypt took over Gaza, no one recognised their rights to these lands and at that time, there was no movement to establish a Palestinian state.  Furthermore, when Israel made peace with both Jordan and Egypt, both countries gave up their claims to these territories. Given this, the Israeli side argues that the pre-existing Palestine Mandate resolution that permits Jews to settle in the area is still valid for these areas and therefore the international community has no legal basis to tell Jews not to settle in areas over the green line.  As Professor Eugene Rostow, a former US Under-Secretary of State for Political Affairs, has written: “The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there.”

“In legal terms, the West Bank is best regarded as territory over which there are competing claims which should be resolved in peace process negotiations – and indeed both the Israeli and Palestinian sides have committed to this principle,” the Israeli Ministry of Foreign Affairs proclaimed. “Israel has valid claims to title in this territory based not only on the historic Jewish connection to, and long-time residence in this land, its designation as part of the Jewish state under the League of Nations Mandate, and Israel’s legally acknowledged right to secure boundaries but also due to the fact that the territory was not previously under the legitimate sovereignty of any state and came under Israeli control in a war of self-defence. At the same time, Israel recognizes that the Palestinians also entertain claims to this area. It is for this reason that the two sides have expressly agreed to resolve all outstanding issues, including the future of the settlements, in direct bilateral negotiations to which Israel remains committed.”

This article was first published on jerusalemonline

Rachel holds a masters degree in Middle Eastern Studies from Ben-Gurion University and a BA in Government and Politics from the University of Maryland. She is the author of Women and Jihad: Debating Palestinian Female Suicide Bombings in the American, Israeli and Arab media.