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Jewish settlements are legal

The misperceptions, misrepresentations and ignorance surrounding the general attitude toward the legal status of Jewish settlements in the disputed area of Judea and Samaria (the West Bank), reflects the general attitude toward the unique phenomenon of the reconstruction of the Jewish national home in the Land of Israel.

“Fidelity to law is the essence of peace” opined Prof. Eugene Rostow, a former Dean of Yale University Law School, Undersecretary of State and a co-author of the November 22, 1967 UN Security Council Resolution 242. Rostow resolved that under international law: “Jews have the same right to settle in the West Bank as they have in Haifa.”
Prof. Rostow determined that according to Resolution 242, which he co-authored: “Israel is required to withdraw ‘from territories’, not ‘the’ territories, nor from ‘all’ the territories, but ‘some’ of the territories, which included the West Bank, East Jerusalem, the Gaza Strip, the Sinai Desert and the Golan Heights.”  Moreover, “resolutions calling for withdrawal from ‘all’ the territories were defeated in the Security Council and the General Assembly…. Israel was not to be forced back to the ‘fragile and vulnerable’ [9-15 mile-wide] lines… but to ‘secure and recognized’ boundaries, agreed to by the parties…. In making peace with Egypt in 1979, Israel withdrew from the entire Sinai… [which amounts to] more than 90% of the territories occupied in 1967….”
Former President of the International Court of Justice, Judge Stephen M. Schwebel, stated: “[The 1967] Israeli conquest of territory was defensive rather than aggressive… [as] indicated by Egypt’s prior closure of the Straits of Tiran, blockade of the Israeli port of Eilat, and the amassing of [Egyptian] troops in Sinai, coupled with its ejection of the UN Emergency Force…[and] Jordan’s initiated hostilities against Israel…. The 1948 Arab invasion of the nascent State of Israel further demonstrated that Egypt’s seizure of the Gaza Strip, and Jordan’s seizure and subsequent annexation of the West Bank and the old city of Jerusalem, were unlawful…. Between Israel, acting defensively in 1948 and 1967 ]according to Article 52 of the UN Charter[, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was [British Mandate] Palestine, including the whole of Jerusalem…. It follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful….”
The legal status of Judea and Samaria is embedded in the following authoritative, binding, internationally-ratified treaties, which recognized that the area has been the cradle of Jewish history, culture, aspirations and religion:
(I) The November 2, 1917 Balfour Declaration, issued by Britain, called for “the establishment in Palestine of a national home for the Jewish people….”
(II) The April 24, 1920 resolution, adopted by the post-First World War San Remo Peace Conference of the Allied Powers Supreme Council, incorporated the Balfour Declaration, entrusting both sides of the Jordan River to the Mandate for Palestine: “the Mandatory will be responsible for putting into effect the [Balfour] declaration… in favor of the establishment in Palestine of a national home for the Jewish people.” It was one of over 20 Mandates (trusteeships) established following WW1, responsible for most boundaries in the Middle East.
(III) The Mandate for Palestine, ratified on July 24, 1922 by the Council of the League of Nations entrusted Britain to establish a Jewish state in the entire area west of the Jordan River, as demonstrated by article 6: “[to] encourage… close settlement by Jews on the land, including State lands and waste lands….” The Mandate is dedicated exclusively to Jewish national rights.
(IV) The October 24, 1945 Article 80 of the UN Charter incorporated the Mandate for Palestine into the UN Charter.  Accordingly, the UN or any other entity cannot transfer Jewish rights in Palestine, including immigration and settlement, to any other party.
The November 29, 1947 UN General Assembly Partition Resolution 181 was a non-binding recommendation – as are all General Assembly resolutions – superseded by the binding Mandate for Palestine. The 1949 Armistice Agreements between Israel and its neighbors delineated the pre-1967 ceasefire – non-ratified – boundaries.

According to Article 80 of the UN Charter, and the Mandate for Palestine, the 1967 war of self-defense returned Jerusalem and Judea and Samaria to its legal owner, the Jewish state.  Legally and geo-strategically the rules of “belligerent occupation” do not apply to Israel’s presence in Judea and Samaria, since the area is not “foreign territory,” and Jordan did not have a legitimate title over the area in 1967. Also, the rules of “belligerent occupation” do not apply in view of the 1994 Israel-Jordan peace treaty.While the 1949 4th Geneva Convention prohibits the forced transfer of populations to areas previously occupied by a legitimate sovereign power, Israel has not forced Jews to settle in Judea and Samaria, and Jordan was not recognized, internationally, as its legitimate sovereign power.

Furthermore, the 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Agreement do not prohibit Jewish settlements in Judea and Samaria, stipulating that the issue will be negotiated during the permanent status negotiations, enabling each party to plan, zone and build in areas under its control. If Israeli construction prejudges negotiation, then Arab construction – which is dramatically larger – dramatically prejudges negotiation.
Finally, the term “Palestine” was a Roman attempt – following the 135 CE Jewish rebellion – to eradicate Jews and Judaism from human memory. It substituted “Israel, Judea and Samaria” with “Palaestina,” a derivative of the Philistines, an arch enemy of the Jewish people, whose origin was not in Arabia, but the Greek Aegian islands.
The campaign against legal Jewish settlements in the disputed – rather than occupied – area of Judea and Samaria is based on gross misrepresentations, fueling infidelity to law, which undermines the pursuit of peace.



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Open letter to Prime Minister Bennett ahead of visit to USA

(Hebrew edition in “Israel Hayom,” Israel’s largest circulation daily)

During your first official visit to Washington, DC, you’ll have to choose between two options:

*Blurring your deeply-rooted, assertive Israeli positions on the future of Judea and Samaria (the West Bank), which would be welcome by the Biden Administration, yielding to short-term political convenience and popularity inside the beltway;

or

*Tenaciously advocating your deeply-rooted, principle-driven positions, which would underscore a profound disagreement with the Biden Administration and the “elite” US media, while granting you and Israel long-term strategic respect, as demonstrated by some of your predecessors.

For example, the late Prime Minister Shamir honed the second option, bluntly introduced his assertive Israeli positions on Judea and Samaria, rebuffed heavy US pressure – including a mudslinging campaign by President Bush and Secretary of State Baker – suffered a popularity setback, but produced unprecedented expansion of US-Israel strategic cooperation. When it comes to facing the intensified threats of rogue regimes and Islamic terrorism, the US prefers principle-driven, reliable, patriotic, pressure-defying partners, irrespective of disagreements on the Palestinian issue.

Assuming that you shall not budge on the historical and national security centrality of Judea and Samaria, it behooves you to highlight the following matters during your meetings with President Biden, Secretary of State Blinken, National Security Advisor Sullivan, Secretary of Defense Austin and Congressional leaders (especially the members of the Appropriations Committees):

  1. The 1,400-year-old track record of the stormy, unpredictable, violent and anti-“infidel” Middle East, which has yet to experience intra-Arab peaceful-coexistence, along with the 100-year-old Palestinian track record (including the systematic collaboration with anti-US entities, hate-education and anti-Arab and anti-Jewish terrorism) demonstrates that the proposed Palestinian state would be a Mini-Afghanistan or a Mega-Gaza on the mountain ridges of Judea and Samaria.

It would dominate 80% of Israel’s population and infrastructures in the 9-15-mile sliver between Judea and Samaria and the Mediterranean, which is shorter than the distance between RFK Stadium and the Kennedy Center.

Thus, a Palestinian state would pose a clear and present existential threat to Israel; and therefore, Israel’s control of the mountain ridges of Judea and Samaria is a prerequisite for its survival.

  1. The proposed Palestinian state would undermine US interests, as concluded from the Palestinian intra-Arab track record, which has transformed the Palestinians into a role-model of intra-Arab subversion, terrorism and ingratitude. Arabs are aware that a Palestinian state would add fuel to the Middle East fire, teaming up with their enemies (e.g., Iran’s Ayatollahs, the Muslim Brotherhood and Turkey’s Erdogan) and providing a strategic foothold to Russia and China. Consequently, Arabs shower Palestinians with favorable talk, but with cold and negative walk.

Hence, during the October, 1994 Israel-Jordan peace treaty ceremony, Jordan’s military leaders asserted to their Israeli colleagues that a Palestinian state west of the Jordan River would doom the pro-US Hashemite regime east of the River, and lead, subsequently, to the toppling of all pro-US Arab Peninsula regimes.

  1. There is no foundation for the contention that Israel’s retreat from the mountain ridges of Judea and Samaria – which are the cradle of Jewish history, religion and culture – is required in order to sustain Israel’s Jewish majority. In reality, there is unprecedented Jewish demographic momentum, while Arab demography – throughout the Middle East – has Westernized dramatically. The Jewish majority in the combined area of Judea, Samaria and pre-1967 Israel benefits from a robust tailwind of fertility and migration.
  2. Israel’s control of the mountain ridges of Judea and Samaria and the Golan Heights, bolsters its posture of deterrence, which has daunted rogue regimes, reduced regional instability, enhanced the national security of all pro-US Arab regimes, and has advanced Israel’s role as a unique force-multiplier for the US. An Israeli retreat from Judea and Samaria would transform Israel from a strategic asset – to a strategic liability – for the US.
  3. As the US reduces its military presence in the Middle East – which is a global epicenter of oil production, global trade (Asia-Africa), international Islamic terrorism and proliferation of non-conventional military technologies – Israel’s posture of deterrence becomes increasingly critical for the pro-US Arab countries (e.g., Saudi Arabia, the United Arab Emirates, Bahrain, Oman, Jordan), who consider Israel to be the most reliable “life insurance agent” in the region.

Contrary to NATO, South Korea and Japan, Israel’s defense does not require the presence of US troops on its soil.

  1. Sustaining Israel’s Qualitative Military Edge is a mutual interest for the US and Israel, which serves as the most cost-effective battle-tested laboratory for the US defense industries and armed forces. Thus, Israel’s use of hundreds of US military systems has yielded thousands of lessons (operation, maintenance and repairs), which have been integrated, by the US manufacturers, into the next generation of the military systems, saving the US many years of research and development, increasing US exports and expanding the US employment base – a mega billion dollar bonanza for the US. At the same time, the US armed forces have benefitted from Israel’s military intelligence and battle experience, as well as joint training maneuvers with Israel’s defense forces, which has improved the US formulation of battle tactics.

Prime Minister Bennett, your visit to Washington, is an opportunity to demonstrate your adherence to your deeply-rooted strong Israeli positions, rejecting the ill-advised appeals and temptations to sacrifice Israel’s national security on the altar of convenience and popularity.

Yours truly,

Yoram Ettinger, expert on US-Israel relations and Middle East affairs

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