Ten Basic Points: Israel’s Rights to Judea and Samaria

In contrast to John Kerry’s remarks, Israel has legitimate legal rights to Judea and Samaria, as summarized below.

Amb. Alan Baker, ARUTZ SHEVA

The following points are reposted from Ambassador Alan Baker’s blog.

1. Upon Israel’s taking control of the area in 1967, the 1907 Hague Rules on Land Warfare and the Fourth Geneva Convention (1949) were not considered applicable to the West Bank (Judea and Samaria) territory, as the Kingdom of Jordan, prior to 1967, was never the prior legal sovereign, and in any event has since renounced any claim to sovereign rights via-a-vis the territory.

2. Israel, as administering power pending a negotiated final determination as to the fate of the territory, nevertheless chose to implement the humanitarian provisions of the Geneva convention and other norms of international humanitarian law in order to ensure the basic day-to-day rights of the local population as well as Israel’s own rights to protect its forces and to utilize those parts of land that were not under local private ownership.

3. Article 49 of the Fourth Geneva Convention, prohibiting the mass transfer of population into occupied territory as practiced by Germany during the second world war, was neither relevant nor was ever intended to apply to Israelis choosing to reside in Judea and Samaria.

4. Accordingly, claims by the UN, European capitals, organizations and individuals that Israeli settlement activity is in violation of international law therefore have no legal basis whatsoever.

5. Similarly, the oft-used term “occupied Palestinian territories” is totally inaccurate and false. The territories are neither occupied nor Palestinian. No legal instrument has ever determined that the Palestinians have sovereignty or that the territories belong to them.

6. The territories of Judea and Samaria remain in dispute between Israel and the Palestinians, subject only to the outcome of permanent status negotiations between them.

7. The legality of the presence of Israel’s communities in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question.

8. The Palestinian leadership, in the still valid 1995 Interim Agreement (Oslo 2), agreed to, and accepted Israel’s continued presence in Judea and Samaria pending the outcome of the permanent status negotiations, without any restriction on either side regarding planning, zoning or construction of homes and communities. Hence, claims that Israel’s presence in the area is illegal have no basis.

9. The Palestinian leadership undertook in the Oslo Accords, to settle all outstanding issues, including borders, settlements, security, Jerusalem and refugees, by negotiation only and not through unilateral measures. The Palestinian call for a freeze on settlement activity as a precondition for returning to negotiation is a violation of the agreements.

10. Any attempt, through the UN or otherwise, to unilaterally change the status of the territory would violate Palestinian commitments set out in the Oslo Accords and prejudice the integrity and continued validity of the various agreements with Israel, thereby opening up the situation to possible reciprocal unilateral action by Israel.

The writer is Director of the Insititute for Contemporary Affairs at the Jerusalem Center for Public Affairs, formerly ambassador to Canada and legal advisor to the Israeli Foreign Ministry

November 7, 2013 | 14 Comments »

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14 Comments / 14 Comments

  1. loonwatchexposed Said:

    What about the right of return? I doubt that Israel would retain a 2:1 majority after annexation.

    There is no such right. “In order for nations to exist, those nations must fight for their right to exist. Nations must insist upon their own borders, their own laws, their own values, and To exist, people and nations must fight to survive. If WE fail, we die – .”

    The only rights the Arabs have is to assimilate in other countries or fight us and die. The choice is theirs.

  2. CuriousAmerican Said:

    Peace = Israel lives in security without constant violence.

    ‘Security’ of 6 million Jews in the midst of 300 million Arab Muslims as a concept is an oxymoron.

    Closer to home as long as there are a significant number of Arabs living within our borders will never engender ‘security’ but continuous conflict.

    We can easily live with sporadic violence as long as it’s manageable and the human toll is small. Keep in mind we lose almost 500 lives to road accidents a year. A policy of disproportionate retaliation like 1 to 100 will keep the numbers of Jewish fatalities down to a minimum.

    I would build a new settlement for every Jew lost to us through terrorism and reduce economically our financial costs from any financial monetary transfers to the them. Cease paying them , cease employing them, cease importing their produce etc and force them to leave which they are doing in considerable numbers already.

    Apparently your definition of Peace is different than mine, yours requires us to pay a price for something less than real security; mine is rational and doable. We want maximum quite and non violence from the Arabs living in our midst and along our borders. That’s enough for us until the Mashiach comes. The only real Peace is the Peace of the Grave and I am willing to extend that peace to all our enemies.

    A New Definition of ‘Peace’

  3. Joseph Rapaport Said:

    Absolutely!!!! It is incumbent on Israel to determine its destiny. The problem will not be solved until the GOI makes the first step
    and that consists of saying “ZO ARTZEINU”, this is our land. If it is our land than we must ANNEX it. The problem of the Arabs, (there
    are no longer any Palestinians since ’48), residing in J & S will be handled through a combination of voluntary and financially induced
    emigration. Those who choose to stay in the State of Israel will have to bear responsibilities as well as rights. They will also have
    to declare loyalty to the state. In addition there should be some form of public service for them to
    do as an alternative to military service. This concept should be extended to Israeli Arabs too.

    Don’t forget compensation should be agreed to by the Arabs who want a ‘right of return’ and who are not residing in J & S. Agreed to beforehand. Otherwise it would be the end of a Jewish state if hostile non Jews were to be able to take citizenship after annexation.

  4. Ted Belman Said:

    A major campaign that I am involved with has just been launched to get the government to embrace the Levy Report. There is also a campaign by Women in Green to annex all of J&S.

    After annexation, Jewish residents will outnumber Arab residents by a margin of 2:1. Jewish citizens will outnumber Arab citizens by a ration of 4:1
    If Israel does annex, and it looks more likely every day, then citizenship will be offered to all qualified Palestinians. Qualifications include, inter alia, a loyalty oath and knowledge of Hebrew. It will take many years for Arab residents to become citizens.

    What about the right of return? I doubt that Israel would retain a 2:1 majority after annexation.

  5. @ yamit82:
    GOOD!!!!

    Unless you can define ‘Peace’ You are just blowing smoke. Define your terms otherwise I reject it out of hand.

    Peace = Israel lives in security without constant violence.

  6. @ Ted Belman:

    A major campaign that I am involved with has just been launched to get the government to embrace the Levy Report. There is also a campaign by Women in Green to annex all of J&S.

    Israel should annex J&S.

    @ Ted Belman:

    After annexation, Jewish residents will outnumber Arab residents by a margin of 2:1. Jewish citizens will outnumber Arab citizens by a ration of 4:1

    You can improve the ratio by paying the willing to leave.

    @ Ted Belman:

    If Israel does annex, and it looks more likely every day, then citizenship will be offered to all qualified Palestinians. Qualifications include, inter alia, a loyalty oath and knowledge of Hebrew. It will take many years for Arab residents to become citizens.

    I never recommended immediate naturalization. One thing should be done. Israel should take control of the schools, and teach Hebrew. Bilingual states are unstable. Look at Belgium and Canada.

    @ Ted Belman:

    In the meantime, Arab numbers are suffering from significant emigration and a declining birthrate while Jewish numbers are growing due to a rise in Jewish fertility and a net immigration due to the strong economy, rising antisemitism in Europe and government plans to promote aliya big time.

    There is still the problem of first birth age. If Arab women and Jewish women both have 3 kids, the problem is NOT solved if the Arab women have kids much earlier, since that means they cycle generations faster.

    @ Ted Belman:

    Finally in preparation for annexation Israel will drastically alter their present form of government. It will probably include an upper house that must approve of all matters of security and identity, Just as in the US where representation in the Senate is not based on population i.e., New York has the same number of seats as Utah, so it will be in Israel. Jews will control this Upper House due to the allocation of these seats. The Lower house will consist of both seats to party lists and seats to constituencies.

    Prof Paul Eidelberg’s plan. Oddly, same plan was in the bible where the tribes of Israel chose elders to represent them; and those same tribes were assigned a geographic area. Hence, geographic areas had elders assigned to them.

  7. @ Joseph Rapaport:
    The problem of the Arabs … residing in J & S will be handled through a combination of voluntary and financially induced emigration.

    THIS IS WHAT I HAVE BEEN SAYING ALL ALONG!

  8. CuriousAmerican Said:

    Whatever is done. UNLESS the Palestinian issue is resolved there won’t be peace.

    GOOD!!!!

    Unless you can define ‘Peace’ You are just blowing smoke. Define your terms otherwise I reject it out of hand.

  9. A major campaign that I am involved with has just been launched to get the government to embrace the Levy Report. There is also a campaign by Women in Green to annex all of J&S.

    After annexation, Jewish residents will outnumber Arab residents by a margin of 2:1. Jewish citizens will outnumber Arab citizens by a ration of 4:1
    If Israel does annex, and it looks more likely every day, then citizenship will be offered to all qualified Palestinians. Qualifications include, inter alia, a loyalty oath and knowledge of Hebrew. It will take many years for Arab residents to become citizens. In the meantime, Arab numbers are suffering from significant emigration and a declining birthrate while Jewish numbers are growing due to a rise in Jewish fertility and a net immigration due to the strong economy, rising antisemitism in Europe and government plans to promote aliya big time.

    Finally in preparation for annexation Israel will drastically alter their present form of government. It will probably include an upper house that must approve of all matters of security and identity, Just as in the US where representation in the Senate is not based on population i.e., New York has the same number of seats as Utah, so it will be in Israel. Jews will control this Upper House due to the allocation of these seats. The Lower house will consist of both seats to party lists and seats to constituencies.

    There is absolutely no demographic threat to annexation.

  10. Absolutely!!!! It is incumbent on Israel to determine its destiny. The problem will not be solved until the GOI makes the first step
    and that consists of saying “ZO ARTZEINU”, this is our land. If it is our land than we must ANNEX it. The problem of the Arabs, (there
    are no longer any Palestinians since ’48), residing in J & S will be handled through a combination of voluntary and financially induced
    emigration. Those who choose to stay in the State of Israel will have to bear responsibilities as well as rights. They will also have
    to declare loyalty to the state. In addition there should be some form of public service for them to
    do as an alternative to military service. This concept should be extended to Israeli Arabs too.

  11. This is all wonderful and good.

    I agree that Israel has the title to Judea and Samaria.

    The problem is the 1.5-2 Million Palestinians on it. You know my suggestion. Compensated relocation.

    Whatever is done. UNLESS the Palestinian issue is resolved there won’t be peace.

    It is not enough to declare title to Judea and Samaria.

    Israel has put herself in this situation by 46 years of refusing to annex the area.

    If Israel wants J&S, then annex it.

    If Israel does not annex it, then Israel is aggravating her own problem.

    Deut 1:8 Go in and [annex] the land – Modern tranlsation

    Israel has tried to operate with the trappings of sovereignty without taking the legal steps to sovereignty.

    For many here who cite the law, about this and that claim through the mandate, then you have to annex.

    Don’t blame the world because Israeli governments are too feckless to annex.

    That is what it comes down to.

  12. Today, Jews are told their presence is insufferable.

    We’ve gotten to the point where the illegitimacy of Zionism and by implication the existence of the State Of Israel is taken for granted on the planet.

    The real argument has nothing to do with the settlements; the real argument has everything to do with the Jew as a human being.

    In that regards, John Kerry is at one with PA dictator Abu Bluff in denying the humanity of the Jew. And peace is at hand! Yeah, sure.