WHILE YOU STAND ON ONE LEG: 73 U.S. Congress members recently wrote President Biden, asking him to condemn” Israeli settlements” as “inconsistent with international law.” A JPost article quoted experts answering that the “settlements” in the “occupied territories,” the “West Bank,” are legitimate. We have to stop making our case using terms designed to unmake our case.
“Israeli Settlements are Legitimate Under International Law”; Wouldn’t It Be Stronger To Say They’re Not “Settlements”?
“Settlers” and “Settlements” are Dirty Words
“Settlers” and “settlements” may once have meant something laudable – hardy pioneering men and women braving the wilderness to tame America’s Wild West. But “settlers” and “settlements” have long been dirty words, from the Jewish perspective, in the Arab-Israeli conflict over Palestine context.
On a Friday back in 2002, the Philadelphia Inquirer, a paper to which old defunct ceasefire lines matter, discovered to its chagrin that on Thursday it had inadvertently used the expression “Palestinian settlements.” That expression didn’t make it through the weekend. On Saturday, the Inq wrote in a “Clearing the Record”:
“In an Inquirer article Thursday [3/14/02] on President Bush’s news conference, the words “Palestinian settlements” were used in reference to attacks by the Israeli military in the West Bank and Gaza Strip. The attacks were directed at Palestinian towns and refugee camps.” (emphasis added)
(Actually, Israel’s “attacks” were directed “at” terrorists in those “Palestinian towns” and Arab “refugee camps” from the 1948 war.)
Ten times in a 3/15/04 Philadelphia Inquirer Knight-Ridder article on Jews seeking “to reestablish a Jewish presence in what had been a Yemenite Jewish village in the Silwan neighborhood [of Jerusalem] until Arab riots in the 1920’s and ‘30’s drove the Jewish residents out” (emphasis added), the article called those Jerusalem Jewish community-reestablishing Jews “settlers.”
The media lovingly contrasts Israeli “settlements” with nearby Arab “villages.” E.g., New York Times photo caption, 2/14/17: “An Israeli settlement in front of an Arab village ….”; Philadelphia Inquirer photo caption, 6/16/14: “Israeli soldiers search the West Bank village of Einun, near Hebron. They were looking for three teenagers who went missing near a settlement.”
Alas, the international community today agrees with the media that Jews, of all peoples on earth, residing in historic Jerusalem, including the Old City, and Judea=Samaria today are not there by historic and legal right, but are alien “settlers.” These are the words of UNSC 2334, adopted 14-0-1 by the United Nations Security Council with U.S. abstention in late 2016 with the Obama administration’s on its way out the door. The Security Council demanded that
“Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem” [emphasis added]
New JPost Article Defending “Settlements” as Legitimate
Some weeks ago, 73 members of the U.S. House of Representatives sent a letter to President Biden urging him to condemn “Israeli settlements as being inconsistent with international law.” A July 3 Andrew Lovy Jerusalem Post article, Israeli Settlements are Legitimate Under International Law, called that assertion “unequivocally false,” and I believe cited controlling principles, but did so using Jewish homeland-delegitimizing terminology – particularly “Israeli settlements,” “West Bank” and “occupied territories” – that undercut the article’s argument. Some of these pejorative uses appear in the article’s quotes of experts arguing that the “West Bank settlements” are legitimate, and not in the article author’s own words, but our side’s experts using these delegitimizing pejoratives makes such use of them worse.
The article relies heavily on the League of Nations’ Palestine Mandate, “an international legally binding document” accepted by the League’s successor UN, which recognized “the historical connection of the Jewish people with Palestine” and “the grounds for reconstituting their national home in that country.” [The Mandate originally encompassed land on both sides of the Jordan River, but contained a clause allowing the Mandatory, Britain, to “withhold or suspend” most of its provisions to the land east of the River, which Britain promptly did, creating Transjordan, today’s Jordan, on that 78% of the Mandate. There was no such provision allowing withholding or suspension of the Mandate’s provisions on the 22% of the land west of the River.]
During the term of the Mandate, there was not yet a 1949 Israel-Jordan ceasefire line snaking through western Palestine, and there was thus no difference between Jewish communities, such as Gush Etzion, established east of where that line would later fall, and Jewish communities west of it. And when Israel became independent in 1948, the article states, “under the customary international law doctrine of uti possidetis juris, newly forming countries acquire their pre-independence administrative borders.”
The 1948-49 war begun by Jordan, Egypt and other Arab states’ invasion ended in ceasefire agreements. That between Israel and Jordan left historic Jerusalem and Judea-Samaria [Jordan didn’t rename it “West Bank” until 1950] on the Jordanian side of the ceasefire line, which “the agreement emphasized” was a military ceasefire line exclusively and “wouldn’t constitute an international border.”
The article continues:
“After Jordan attacked Israel on June 5, 1967, Israel managed to recapture the territory of the West Bank that it was allotted under the Mandate.”
The article then turns to its heart, answering the argument of those who claim that Israel’s rebuilding of old and building of new Jewish communities east of the old 1949 ceasefire line violates Article 49 of the Fourth Geneva Convention, which states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
In answer, the article [emphasis added throughout] first quotes Morris Abram, a drafter of the Convention, that Article 49
“was not designed to cover situations like Israeli settlements in the occupied territories but rather the forcible transfer, deportation or resettlement of large numbers of people.”
The article then quotes Eugene Rostow, co-author of UNSC Resolution 242 that, as the JPost article author puts it, “Article 49 does not apply to the Israeli West Bank settlements because,” quoting Rostow:
“the Jewish settlers in the West Bank are volunteers. They have not been ‘deported’ or ‘transferred’ by the government, and their movement involves none of the atrocious purposes or harmful erects on the existing population the Geneva Convention was designed to prevent.
“…. The Convention applies only to acts by one signatory ‘carried out on the territory of another.’ The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate.”
The article goes on:
“Rostow explained that Israel’s construction of settlements in the West Bank following the Six Day War are permissible under international law because as an unallocated part of the Mandate, the provisions of the document are still legally binding on the the territory of the West Bank. Rostow states: ‘The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv and Jerusalem before the State of Israel was created.’
“Therefore, Rostow mentioned, ‘The Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors.’”
“…. In summation, Israeli settlements are legitimate and Israel has the legal right under international law to build them.”
If Mr. Rostow is right that Israelis’ right to live in Judea-Samaria is conferred by the Mandate, just like their right to live in Tel Aviv, because the article’s author is right that the Jewish national home’s territory under the Mandate, and hence Israel’s territory by inheritance, is western Palestine, between the Sea and the River, and that this right was not conceded by Israel in the Israel-Jordan armistice agreement of 1949, then Judea-Samaria is no more some “unallocated part of the Mandate” than is Tel Aviv’s beach. Jews living there are no more “Jewish settlers” living in “Jewish settlements” in “occupied Palestinian territory,” some “West Bank” that existed only from 1949 to 1967, than are Jewish sunbathers on that Tel Aviv beach.
The average Joe in America hardly has incentive to work through that preceding paragraph’s reasoning chain. But he does understand “settlers and settlements … occupation … West Bank.” We have to stop making our case using terms designed to unmake our case. How’s this for self-respecting replacement – “Jewish communities in Israel’s Judea-Samaria hill country, Jewish neighborhoods in Israel’s capital, historic Jerusalem”?