How settlements became 'illegal'

In 1967, under attack, Israel struck back and conquered the Golan Heights from Syria, the Sinai Peninsula and the Gaza Strip from Egypt, and Judea, Samaria and Jerusalem (the West Bank) from Jordan. Israel had been threatened with a second Holocaust, and few questioned its actions. No one spoke of a Palestinian state; there was no "Palestinian people."

Many legal experts accepted Israel's right to "occupy" and settle its historic homeland, because the areas had been illegally occupied by invading Arab countries since 1948.

One organization, however - the International Committee of the Red Cross - disagreed.

Meeting secretly in the early 1970s in Geneva, the ICRC determined that Israel was in violation of the Fourth Geneva Convention. Based on the Hague Convention, GC IV was drawn up after World War II to protect innocent civilians and restrict brutal occupations. Unilaterally, the ICRC turned it into a weapon to delegitimize and demonize Israel.

As far as is known, the ICRC did not rely on any legal precedents; it made up "the law."

Judge and jury, its decisions lacked the pretense of due process. Since all decisions and protocols of the ICRC in this matter are closed, even the identities of the people involved are secret. And there is no appeal. Without transparency or judicial ethics, ICRC rulings became "international law." Its condemnations of Israel provide the basis for accusing Israel of "illegal occupation" of all territory conquered in 1967.

Although most of the international community, its NGOs and institutions accept the authority of the ICRC and other institutions, such as the International Court of Justice, as sole arbiters of what is "legal," or not, it's strange that some Israeli politicians and jurists cannot defend Israel's legal claim to the territories. And Israel's case is strong.

ADOPTED IN 1945, the UN Charter (Article 80) states: "...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties."

This means that the designation of "Palestine" as a "Jewish National Home," incorporated in the British Mandate and established by international agreements adopted by the League of Nations and US Congress, guarantees Israel's sovereign rights in this area. All Jewish settlement, therefore, was and is legal.

Two years later, amid growing civil war, the UN proposed a division of Palestine between Jews and Arabs - changing the terms of the Mandate; the Jews accepted, the Arabs launched a war of extermination.

When Britain ended the Mandate and left, the State of Israel was proclaimed and local mobs who had been attacking Jews for years were joined by five Arab armies. The armistice in 1949 - for Jews, independence, for Arabs, nakba (tragedy) - did not result in a Palestinian state, because the Arabs did not want it. Arab leaders never accepted Israel's right to exist as a Jewish state - most refuse to do so today.

Pressured by Russia and the Arab states, the Security Council adopted Resolution 242, which spoke of Israel's military withdrawal from some - not all - of these conquered territories in the context of a final peace agreement. The question of sovereignty remained elusive and problematic.

Israel's political echelon and Supreme Court refrained from asserting full sovereignty over the newly acquired areas but, in the absence of any reciprocal gestures, agreed to allow Jews to return to Jerusalem's Old City and Gush Etzion, where a flourishing group of settlements had been wiped out in 1947. Striking a compromise, it allowed the building of Kiryat Arba, near Hebron, where the Jewish community had been wiped out in Arab riots of 1929; Jews were permitted to pray at the Cave of Machpela, an ancient building containing the tombs of Jewish patriarchs and matriarchs, for the first time in 700 years.

Although free to leave UNRWA refugee camps, with new opportunities and challenges, Palestinians did not call for statehood or peace with Israel. The PLO, which claimed to represent Palestinians, was dedicated to terrorism, not nation-building.

FOR SOME, this is not a "legal" issue, but a moral one: Jews should not rule over ("occupy") others. So Israel withdrew unilaterally from nearly all "Palestinian" cities, towns and villages and turned over vast tracts of land to the PA/PLO as part of the Oslo Accords in 1994 and a few years later in the Wye and Hebron agreements.

When Israel withdrew from the Gaza Strip, it became a bastion of Hamas. "Land for peace" in reality means "land for terrorism."

Influenced by these events, incited by Islamists, encouraged by Israeli concessions and seeking to undermine the state, Israeli Arabs identify as "Palestinians," demanding an end to "Jewish occupation" and discrimination, and the destruction of the state itself.

Others contend that "Israel's Jewish and democratic" nature will be threatened if it continues to include large numbers of Arabs who are not loyal and do not identify with the state. But nearly all "Palestinians" live under PA, not Israeli rule. The dispute now, therefore, is over territory, not people.

Predictions of an "Arab demographic time bomb" have not proven realistic or accurate. Moreover, allowing Arab residents full civil and humanitarian rights, without political rights, as exist in most other countries, could be considered in conjunction with resettling Arab "refugees" in Lebanon, Syria, Jordan, etc., dismantling UNRWA camps and ending terrorism and incitement against Israel.

That a second (or third) Arab Palestinian state would be an existential threat to Israel seems obvious. "Land for peace" has failed. Why then promote it?

The writer, a former assistant professor of history, is a journalist.