Jewish settlements are legal, freezing settlements are illegal

On the rights of ‘settlers’
by Shmuel Katz

US Ambassador Richard Jones was recently reported to have asked Supreme Court President Dorit Beinisch about the legal status of the “settlements.”

This is indeed a subject which has long been neglected – or simply ignored. The answer to the question is a simple one, but in view of the obfuscation which has for years gathered around it, it is essential to examine its roots. They lie comfortably in the text of the Mandate for Palestine which was conferred on Britain in 1922 by the League of Nations.

The Mandate’s objective was to facilitate the “reconstitution” of the Jewish National Home in Palestine. It was intended to serve as the legal instrument for implementing Britain’s 1917 Balfour Declaration. The essential obligations of the mandatory were to facilitate the immigration of Jews and encourage their “close settlement” on the land, including state and waste lands. (In accordance with the Balfour Declaration, “the civil and religious rights of existing non-Jewish communities” were to be protected.)

The vision of the Balfour Declaration was encapsulated a couple of years later by cabinet minister Winston Churchill, who wrote that “a Jewish state will arise in our day on the banks of the Jordan.”

At that time, too, the League of Nations conferred on Britain a Mandate for Mesopotamia (Iraq); and Mandates for Syria and Lebanon were conferred on France, presaging the establishment of sovereign Arab states. Thus did the Allied nations complete the sharing out of
the territories they had captured from the Turks in the Great War of 1914-1918.

ADDED UP, these Arab states-to-be accounted for some 99 percent of the total conquered area. In its capture during the war it may be said the Arabs themselves played practically no part. The so-called Arab Revolt against the Turks, heavily financed by Britain and brilliantly
portrayed by T.E. Lawrence (of Arabia), did not in fact take place at all. Eighty percent of the Arabs who fought in the war did so on the side of the Turks. The Jewish people not only fielded a Jewish fighting legion in Palestine, but also a most effective intelligence service in Palestine and Syria.

Nevertheless, when peace came Arab voices were raised against the British undertaking to the Jews. Balfour admonished them. He pointed out that it was the British who had established an independent sovereignty in Hejaz (the Mandates came two years later), and he added:

    “I hope they will remember that it is we who desire in Mesopotamia to prepare the way for the future of a self-governing Arab state and I hope that, understanding all that, they will not grudge that small notch being given to the people who for all these hundreds of years
    have been separated from it.”

Yet – in 1922 at the last moment, the British inserted a clause (Number 25) excluding the provision of the Jewish National Home from the area east of the Jordan River. Zionist protest went unheeded; and so the almost-empty eastern Palestine, renamed Transjordan, ultimately
became the Kingdom of Jordan, adding another state to the tremendous Arab domain. The fact that it was a Palestinian state could not be erased, nor that the majority of its inhabitants have come from western Palestine. Thus was executed the first partition of the Land of Israel.

THE STATUS of Jewish settlement in what remained of Palestine remained unaffected. But as the years went by, the steady British retreat from their obligations, particularly by severe limitations on Jewish immigration, finally led to the White Paper of 1939. Apart from new land laws, it projected that Jewish immigration would be allowed at 15,000 souls a year for five years and then completely frozen. There would be no Jewish National Home. There would be an Arab majority, and some form of British overlordship to protect Jewish minority interests.

The White Paper, fiercely attacked in Parliament, was passed – by a reduced majority. But any change in British policy in Mandatory Palestine was subject to the approval of the League of Nations. The League, it was true, had for some years already been seen as an effete body, but its constitutional authority had remained intact. For monitoring the progress of the various mandates it maintained a kind of watchdog commission, and considered any proposed changes in the terms of the Mandate only if approved by the Mandate Commission. When in 1939 the British government submitted the White Paper to the commission, it refused its approval on the grounds that it did not conform to the terms of the Mandate.

Angry British Foreign Office senior officials exchanged notes and discussed among themselves the desperate policy of proposing a change in the Mandate itself. But they were stymied. It was too late – nearly the end of August 1939, and on the first of September World War II broke out. The Council of the League of Nations never met again. With it died the White Paper. The Mandate remained the defining document for governing Palestine.

THE BRITISH government, frustrated, did not relent. It launched a bitter campaign, using diplomatic channels in Europe to prevent Jews escaping and employing the Royal Navy to intercept boats carrying Jewish refugees from Europe and prevent their reaching the Jewish
National Home. Indeed, when Churchill was prime minister he wrote in an internal instruction that “the White Paper stands.”

The Mandate, however, with its injunction to assist Jewish settlement, remained intact and after World War II was “inherited” by the United Nations. It was a period of considerable unrest which, despite much repressive effort, the British could not subdue. Under the pressure of
a highly effective Jewish underground fighting force (and consequent reactive political pressure at home) the Labor government finally returned the Mandate to the UN (in the spring of 1947).

The UN, in a dramatic special session, in effect accepted Britain’s resignation and later that year decided to recommend the partition of Palestine between Jews and Arabs. (Not Palestinians. Nobody had heard of such a separate entity.) The Arab states rejected that offer. Thus Palestine, with the rights of Jewish settlement, remained undivided as the Jewish state between the Jordan and the Mediterranean.

The Arab refusal was not a whim. The idea of a non-Arab state (and specifically a hated Jewish state) “in the heart of the Arab world” was anathema to them. It was reflected by a claim of possession of the whole country. Immediately after the UN session, the League of Arab States decided to go to war to destroy the Jewish state at birth.

In the meantime a preliminary campaign of terror was launched against the Jewish community. Then on May 14, 1948, the day the British left, five well-armed Arab states – Egypt, Syria, Jordan, Lebanon and Iraq – invaded the country. The losses Israel sustained in that war of nine
months exceeded, in proportion of population, the losses sustained by Britain and America in World War I.
The invasion success was limited not only by the inordinate valor of the youth of Israel, but in time by the supply of much-needed arms by Czechoslovakia (with Soviet permission) and France.

HOWEVER, Jordan succeeded in holding on to the eastern highlands (primarily Judea and Samaria) and then even presumptuously announced their annexation. Egypt captured the Gaza “Strip.” It is not irrelevant to mention that in the next 19 years of Jordanian and Egyptian occupation, neither Jordan nor Egypt proposed, nor did the Palestinian Arabs demand from Jordan and Egypt, the establishment of a Palestinian state. To the contrary, Palestinian Arab terror continued to operate as before against Israel.

Then in 1967, Egypt, Syria and Jordan again attacked Israel, again with the repeated announcement that the objective was its “annihilation.” Israel turned the tables and won the war. Soon after that victory, Israel offered the Arabs to hand them all the territory it had regained, in return for peace. At a conference in Khartoum the unanimous Arab reply was: No negotiations. No peace. No recognition.

So once again Jewish settlement rights had been endangered, and once again had been saved by Arab intransigence.

It was shortly afterward that the movement of Jewish settlers was launched. It is noteworthy that the last defining document that underwrites the legality was the Geneva Convention of 1949. It dealt with occupied territories. Its second clause, stating its scope, makes it clear that it does not apply to the Jewish presence in Judea and Samaria – because Jordan was not a sovereign possessor but an illegal invader, and similarly was Egypt an illegal invader of Gaza. Israel liberated both areas, restoring them to the territory of the Palestine Mandate of 1922.

From the point of view of international law these settlers are as legal as any resident of Manhattan or of Shreveport, Louisiana.

A well known book by Katz is Battleground: Fact and Fantasy in Palestine. In this book Katz describes the roots of the Arab-Israeli conflict and claims to expose anti-Zionist myths about it. Katz attacks what he calls propaganda used by Arab sources about the roots of the conflict and attempts to refute them. In the preamble of the last edition of the book, the author writes that the book is being taught in numerous schools around the world.

December 30, 2007 | 14 Comments »

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14 Comments / 14 Comments

  1. This is an excellent thread. I particularly agree with Bill’s reservations. Recently I heard from Howard Grief and wrote him in reply dealing with the concerns both Bill and I share. Marc Zell echoes them also.

    One question, I wanted his opinion on, was whether in law, Israel is estopped from asserting such rights due to accepting the Partition Plan and other conduct and statements. Did Israel’s acquiesce in the authority of the UN in accepting the Partition plan diminish its rights.

    I also wanted to know what he thought the effect on our rights was flowing from the High Court decision to endorse the government’s position that Israel held the land in “belligerent occupation”.

    Another question that concerns me is the matter of the trust created by the Mandate in favour of the Jewish people. It is said that only the beneficiaries can change the terms of the trust. But surely the beneficiaries are looked upon as a class or collective and can be represented by the Jewish Agency as it them was or the Government of Israel.

    I Understand that H. Grief wants the Knesset to pass legislation to cancel the High Court decision. Even if they do the legal decision is still on the books. It would be better for the High Court to over rule themselves. Afterall it did not decide the issue at all. It merely accepted the position of the Government. If the government wanted to change their mind it could apply to the Courts for a determination.

    Much to talk about.

  2. Shalom Marc,

    To distill all this down to the one common denominator legal reference, there is only one book to study:

    Field Manual 6-121, Tactics, Techniques and Procedures For Field Artillery Target Acquisition.

    This is what the barbarians use and substituting a list of 95 complaints nailed on the door of a church will only result in more Jewish deaths.

    Kol tuv,

  3. Regarding this thread, there is a tendency in the debate on this important subject to forget that international law is not a codified corpus of rules and judgments as is the case in domestic/municipal legal systems. Professor Malcolm Shaw puts the point cogently when he writes that: “International law is clearly much more than a simple set of rules. It is a culture in the broadest sense in that it constitutes a method of communicating claims, counter-claims, expectations and anticipations as well as a providing a framework for assessing and prioritizing such demands.” Another point to keep in mind is that international law is just one of the ways in which international disputes are resolved — it is inexorably connected to politics. We need to keep these ideas in mind when we discuss the issue of the right of the Jewish People and the State of Israel to settle in Judea, Samaria and Gaza. Bill is quite right in my view to ask how the legal principles that were laid down during and after World War I have evolved. The debate over Jewish settlement rights has become much more complicated following the establishment of the State of Israel and decisions taken and not taken by Israel’s sovereign government. Moreover, international human rights law has emerged as a source of new rights and obligations during the second half of the 20th century — a discipline that did not exist at the time of the Balfour Declaration and the Lausanne Treaty. Another principle that has come of age during the last 50 years is the principle of self-determination. In short, any balanced analysis of Jewish/Israeli rights of settlement in Judea, Samaria and Gaza must take these developments into account or risk being stigmatized as anachronistic and demogogic.

    I believe that the right of the Jewish People and the Jewish State to settle in Judea, Samaria and Gaza under Israeli law can be reconciled with modern international legal principles and political realities. This approach requires us to return to fundamental concepts about the nature of the Jewish rights and those of the Arabs in the area. This approach needs to take into account the nature of the Israeli government’s decision-making process on the issue of settlement before and after 1967. By the same token it needs to examine the legitimacy of the Arab national claim, particularly the argument that Arab control over these areas is compelled by the self-determination principle. And because international law cannot be divorced from international politics, a thorough-going analysis of Jewish settlement rights needs to take into account the legitimacy of United Nations statements and International Court of Justice advisory opinions on this issue as well as the general equities operating in the debate. We need to move away from platitudes and sloganeering and embrace cutting edge analysis. I believe the case for the legality of Jewish settlement can be made convincingly, but we have also to admit that the burden of persuasion has been increased significantly not only by pronouncements of the ICJ but, most regrettably, by a spate of ideologically influenced decisions announced by the Israel Supreme Court both under its current President and her predecessor. This recent change (for the worse) in the legal topography places even greater challenges to those of us who dare to advocate what has undeniably become the minority perspective. However, embracing the minority position does not mean that that view is wrong, even in a field like international law where “state practice” tends to be determined by consensus within the international community. The rights and obligations of the Jewish People (within Judea, Samaria and Gaza and elsewhere) clearly cannot be a function of state practice. Were that so, arguably the very existence of the Jewish People as an object of international law would be doubtful; not to mention the legitimacy of its state. There are necessarily overriding equities which must be defined and re-introduced into the debate. It is in this context that the debate over the legality of Jewish settlements in Judea, Samaria and Gaza takes on a far greater importance than the fate of 250,000 – 500,000 souls — we are speaking of the legality/legitimacy of the Jewish People under international law (and politics)and its right to exist and its right to self-determination.

  4. The Palestinians in the 1922 mandate terms were Jews. The Arabs at the time rejected the term Palestinian. There was a Jewish Agency for Palestine. The mandate’s directive was to reconstruct the National Home Of The Jewish People in Western Palestine with the Mandatory government working hand in glove with the Jewish Agency to fulfill that objective. The British violated their undertaking to fulfill the mandate but it was intended for them to carry out the terms of the 1917 Balfour Declaration, which it copied word for word.

  5. Shalom Bill,

    Re: “Works that analyze the facts, circumstances and international law…after 1922;

    One book that allows for a rapid entry for above project would be FOREIGN RELATIONS LAW OF THE UNITED STATES, Restatement of the Law, (Didn’t see ISBN in my copy…mine is an old edition)

    An example from book:

    “Trusteeship and Mandate

    A state has jurisdiction to…pursuant to …United Nations…or League of Nations.


    a. Trusteeship system


    the powers of the trustee are not completely discretionary.

    Reporter’s Note:

    Mandate of Southwest Africa…”

    Some of the material in this book I don’t understand but it’s the 1 volumn that lets me explore.

    I used it for private sector contract negotiations with foreign government trading companies.

    I believe in 1922 “Palestinians” also included Jewish residents in the British mandate.

    Kol tuv,

  6. Mike, thanks.

    Please contact Ted and he will pass on my e mail address to you. I am hesitant in giving it out as I already get a great many e mails from many I correspond with on these various issues and I don’t think I can handle much more.

    I look forward to your e mail.



  7. Bill, I have a couple of PDF files I could email you. One is by Julius Stone and the other by Eli Hertz. if you are interested let me know and we will find a way to transfer them to you. Can’t remember where I downloaded them from….sorry no source

  8. re: post #2.

    NormanF …from your mouth (or keyboard) to G-ds’ ear!

    Unfortunately the powers in office in Israel could care less about the rights of jews and until we vote ourselves a constitution it will stay that way. We have to get a grass roots civil disobedience movement going to oust the encumbents and try and find someone with a decent set of cojones.

  9. Ymedad, do you have any specific cites to link to that addresses the specific question I raised?

    I have incidentally read Howard Grief’s writings, but if memory serves, his writing failed as well to adequately explain, if at all why in spite of what has transpired since 1922, that in his view the law as regards Israel’s sovereign right to Gaza and the West Bank remains as it was in 1922.

    Anyway to save me some research time, I would appreciate it if you could, direct me to the relevant writings of the people you mentioned that deal specifically with the issue I have raised here.


  10. Bill, try Yehuda Blum, Eugene Rostow, Eliav Shochetmann, Howard Grief, Julius Stone, Stephen Schwebel and others who have written, since 1967, of the basic rights of Jews to their patrimony.

  11. Shmuel Katz is one of several writers who have made the case that the governing law of the region is the Palestine Mandate of 1922 and that law says that Gaza and the West Bank are Israeli lands.

    What these scholars all have in common is that their analysis ends with how the United Nations adopted the laws, treaties and agreements of the League of Nation without exception and thus the laws as relating to British Mandatory Palestine remain in effect.

    A right not exercised wastes away. It is sort of like the adage referring to human musculature, ‘use it or lose it’.

    I would be most interested in reading works that analyze the facts, circumstances and international law that came after 1922.

    In that regard, I would think it relevant to determining whether Israel still has a rightful or superior claim to the lands of Gaza and the West Bank that consideration must be given to the effect of UN Security Counsel Resolution 242, which is a matter of law unlike General Assembly Resolutions and and circumstances such as Israeli positions, policies and agreements with Arabs and Palestinians since 1948 to the present time.

    Given the foregoing, I am wondering if these scholars can reconcile these various factors from 1922 to the present involving Israel, Arabs and Palestinians which factors include facts on the ground, demographics, laws and rights have have or may have materially changed or emerged anew.

    Assuming however that the best legal minds come to the conclusion that Israel’s right to annex and claim sovereignty over Gaza and the West Bank is still superior in spite of all that has occurred since 1922, what good will that do unless Israel asserts that superior right?

    Thus far Israel has not done so and in fact has over the past decades since 1967 appeared unwilling to do so. Because of Israel’s silence and her words and deeds that are consistent with a view that Israel does not have a superior or any right to annex Gaza and the West Bank, it may in fact be far too late to do so.

  12. I happen to agree Jews have the right to live and settle anywhere in Western Palestine – Eretz Israel. It follows no Israeli government may deprive Jews of this right. It is a right given by G-d and cannot be revoked or annulled by Man.

  13. I agree with Katz but who said it recently about possession being 9/10ths of the Law?

    Interesting aside the Lacota Indians have just declared independence from the US of America based on American violations of their treaties. I will watch this one closely as it could have wider implications. They call their new country Turtle Island!

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