The Question of Legality for Israeli control of Judea and Shomron

Following the June 1967 War, a number of legal arguments were advanced to support Israeli claims to the remaining territory of the Palestine Mandate, from the “Green Line” 1949 “Armistice Line” to the Jordan River.
This area of Mandated Territory had been “illegally conquered and occupied” by Trans-Jordan (Jordan) from 1948 -1967. The Jordanians never did offer the Arab residents the chance to establish an independent Palestinian entity. Instead they attempted to annex the area.

According to the Fourth Geneva Convention: “...under customary international law as reflected (...) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague Regulations of 1907”

 "...territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.”

According to the League of Nations resolution for the establishment of the Mandate for Palestine, the area of Judea and Shomron the “West Bank”, were recognized as a cestui sue trust for the Jewish Homeland in April, 1922 in the Treaty of Sèvres (Section VII, Art 94-97) by 52 countries at the San Remo Conference which granted the Palestine Mandate to Britain.

The League of Nations officially granted Britain the "Stewardship" or Mandate for the Territory euphemistically named by Sir Mark Sykes after the geographical term "Palestine",on July 24, 1922. 

This "act" was further ratified later in the Treaty of Lausanne July 24th 1923.

Other facts to be noted are:

• There were Jewish communities that existed in Judea and Shomron the “West Bank” and Gaza Strip prior to 1919 and these had been recognized as legitimate by the Mandate for Palestine,which was adopted by the League of Nations.
• The communities of; Hartuv and Kfar Etzion had only been re-established after 1967 after exhaustive investigations making sure none were built on private land.
• Israel also argues that some of the communities in the area of Gush Etzion are built on land purchased by a Jewish land holding company in 1925.
• There were pre existing Jewish communities in Hebron and the Jewish Quarter of Jerusalem and Silwan before the 1948 Arab-Israeli War. Many of these "West Bank"Jewish communities were destroyed and residents massacred. or as the Arabs and detractors love to claim the Jewish residents were "ETNICALLY CLEANSED"

"Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (Art. 26.1) and that the exercise of these rights shall be free from discrimination of any kind (Art. 2)."

— UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on September 13, 2007." Michael Calvo

Therefore, it seems reasonable to refer to the lands of these pre-state Jewish communities as liberated as they were "liberated" from the illegal occupation of Jordan and were returned to the possession of the owners, the Jewish People. 

Regarding Article 49 of the Fourth Geneva Convention, the Israeli government has NEVER forcibly transferred its population into the territories. The return of Jews to Judea and Samaria (aka West Bank) is voluntary and does not displace local inhabitants.

There are no clauses in the Fourth Geneva Convention that can be used to prohibit the voluntary return of individuals to towns and villages from which they or their ancestors had been previously ejected by forcible means.

Therefore, in these cases, the application of the Geneva Convention is an entirely different issue. It should also be emphasized that:

Much of the land, that was (and still is) being used to build new residential areas, villages and towns, in Judaea and Shomron - what detractors label "settlements"-, are "public lands" and have never had been under the legitimate ownership of any owner beforehand.

Justice Stephen M. Schwebel, who spent 19 years as a judge of the International Court of Justice at The Hague including three years as President. explained;

"...modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable), whether those modifications are, in Secretary Rogers's words, "insubstantial alterations required for mutual security" or more substantial alterations - such as recognition of Israeli sovereignty over the whole of Jerusalem.."

and in a footnote he added

"It should be added that the armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them". Therefore the 1949 Armistice lines are not fixed, as purported by the Palestinians and their supporters. 

The territories, situated between the “Green Line” 1949 “Armistice Line” and the former eastern boundary of Palestine under the Mandate, which were clarified in the British White Paper as being Mandated Palestine Territory- "west of the Jordan" which was intended by the League of Nations and the Balfour Declaration to be converted into a Jewish National Home and was thus excluded from the Arabs was "conquered" and occupied by Trans-Jordan (Jordan) from 1948 -1967.

During this “Occupation” Jordan did not offer to allow the establishment of an independent Palestinian entity, Instead they attempted to annex the area.

Therefore it can be argued Israel in all intents and purposes “liberated” this area in a defensive war in 1967.

Historian and journalist, Gershom Gorenberg, had once stated that outside of the pro-“settlement” community in Israel,this position was considered odd. He had stated that, while the Israeli government has used them for public relations purposes abroad, it takes entirely different positions when arguing real legal cases before the Israeli Supreme Court.

Listen to former Israeli ambassador to Canada, legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs, Alan Baker who participated in the negotiation and drafting of the Oslo Accords with the Falestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. Is the Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum spoke about; Israel Is Not an “Occupier”

Other great Attorneys who have come to the same conclusion are:
Howard Grief who wrote the book "The Legal Foundation and Borders of Israel under International Law" which is a forceful and erudite pleading for the respecting of the letter and spirit of the he San Remo Resolution and the Mandate adopted at the San Remo Peace Conference on April 24, 1920.

According to Grief the international law that came into existence in the wake of World War I gave de jure sovereignty to the Jewish People over the entire Land of Israel and Palestine as defined in the preamble of the Mandate For Palestine. This law, now largely forgotten or neglected, is still relevant today in regard to the status and borders of the Land of Israel.

"The moment of birth of Jewish legal rights and title of sovereignty thus took place at the same time Palestine was created a mandated state, since it was created for no other reason than to reconstitute the ancient Jewish state of Judea in fulfillment of the Balfour Declaration and the general provisions of Article 22 of the League Covenant."

This meant that "Palestine" from the start was legally a Jewish state in theory that was to be guided towards independence by a Mandatory or Trustee, also acting as Tutor, and who would take the necessary political, administrative and economic measures to establish the Jewish National Home. 

The chief means for accomplishing this was by encouraging large-scale Jewish immigration to Palestine, which would eventually result in making Palestine an independent Jewish state, not only legally but also in the demographic and cultural senses.

The details for the planned independent Jewish state were set forth in three basic documents, which may be termed the founding documents of mandated Palestine and the modern Jewish state of Israel that arose from it. 

1) These were the San Remo Resolution of April 25, 1920, 

2) The Mandate for Palestine conferred on Britain by the Principal Allied Powers and confirmed by the League of Nations on July 24, 1922,

3) and the Franco-British Boundary Convention of December 23, 1920. 

These founding documents were supplemented by the Anglo-American Convention of December 3, 1924" Dr. Jaques Gautier who investigated this subject for over 20 years and concluded that not only is Israel in accordance with International law but that the International community is in direct violation of it's own Agreements and Charters they have themselves formulated.

And Professor Eugene Kontorovich who teaches at Northwestern University School of Law. listen to him discuss the issue in this video; The Legal Case for Israel. 

In 2005 Prime Minister Ariel Sharon wanted to dismantle all Israeli settlements in the Gaza Strip and four in the northern West Bank in a regretfully mistaken attempt to stimulate peace between Israel and the Palestinians.

The Sharon Government's decision to remove the “settlers” from the “settlements” was challenged in the Israeli Supreme Court by the Jewish “settlers”. 

At that time the Israeli Supreme Court ruled in favor of the Sharon Government and won the case by noting;

"the settlements were in territory whose legal status was that of 'belligerent territory' or territory under "Military occupation" that: "Judea and Samaria" [West Bank] and the Gaza area were lands seized during warfare, and are not part of Israel." In the court proceedings, the Israel Government argued that the settlers should have known that the settlements were only temporary.

They “settlers” had argued that use of the term"'belligerent territory" in relation to Israel's control of the areas has no basis in international law or history, and that it prejudges the outcome of negotiations.

The term “occupied territory,” which appears in the Fourth Geneva Convention, originated as a result of the Nazi occupation of Europe. Though it has become common parlance to describe the "West Bank" and Gaza as “occupied territories,” there is no legal basis for using the term “occupied territories,” in connection to the Arab-Israeli conflict.

Professor Julius Stone, a leading authority on the Law of Nations, categorically rejected the use of the term “occupied territory” to describe the territories controlled by Israel on the following counts:

(1) Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and never did belong to any other state other that the Ottoman Empire. (The previous High Contracting Power)

2) ARTICLE 49 The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. Article 8(2)(b)(viii) of the International Criminal Court Rome Statute defines "[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime. (*) This should be read only in the context of the World War II forcible migrations. It is only intended to cover forcible transfers and to protect the local population from displacement and not voluntary movement.

Settlement of Jews in the West Bank is voluntary and does not displace local inhabitants.

Moreover, Stone asserted that" “no serious dilution (much less extinction) of native populations” [exists]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred].”

"Irony would...be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that...the West Bank...must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.)"

The Israeli legal argument for control over Judea and Shomron was dismissed by the International Court of Justice. 

The Court cited the Geneva Convention's travaux préparatoires, which recommended that the conventions be applicable to any armed conflict "whether [it] is or is not recognized as a state of war by the parties" and "in cases of occupation of territories in the absence of any state of war" as confirmation that the drafters of the article had no intention of restricting the scope of its application

A 1971 interpretation of the United Nations Security Council Resolution 242 by Israeli Attorney-General, Meir Shamgar

states; “…that the Convention did not pertain to the territories captured by Israel since they had not previously been recognized as part of a sovereign state and could not be considered "the territory of a High Contracting Party".

According to this argument, the last legal sovereign over the territories was that of the League of Nations who had decreed a Mandate for Palestine, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory.
According to Article 6 of the Mandate:

"The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes." 

Accordingly, Article Six, makes it clear that Jewish settlements are not only permissible, but actually encouraged. Therefore, Jewish settlements in Judea and Samaria (the West Bank) are perfectly legal.

Here is Article 4:

"An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration to assist and take part in the development of the country."

"The Zionist organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency. It shall take steps in consultation with His Britannic Majesty's Government to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home."

Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable.

"In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions, provided that no action shall be taken which is inconsistent with the provisions of Articles 15, 16 and 18."

The Jewish people still have residual historical and legal rights in the West Bank emanating from the British Mandate that were never cancelled, but rather were preserved by the U.N. Charter, under Article 80 — the famous “Palestine Clause” that was drafted, in part, to guarantee continuity with respect to Jewish rights from the League of Nations.

Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying;

"Except as may be agreed upon in individual trusteeship agreements...nothing in the [United Nations] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments."

Meir Shamgar further stated:

"There is no rule of international law according to which the Fourth Convention applies in each and every armed conflict whatever the status of the parties.... The whole idea of the restriction of military government powers is based on the assumption that there has been a sovereign who was ousted and that he was a legitimate sovereign
or the last "High Contracting Party."

As we all know the last legally defined High Contracting Party or “Sovereign Power” that controlled the area was the League Of Nations who had a Mandate for a Jewish Homeland in the area that ended in UNR181 from November of 1947.

Therefore the Turkish Empire, was "a sovereign who was ousted and that he was a legitimate sovereign" or the last "High Contracting Party".

With the establishment of the Palestinian Authority in 1994, in accordance with the Oslo Accords, there is no longer an Israeli military government over the Palestinian population.
Indeed, the famous 1949 Fourth Geneva Convention on occupied territories stipulates that an Occupying Power is bound to its terms “to the extent that such a Power exercises the function of government in such territory (Article 6).”

In accordance with the Oslo Accords some functions of government were retained by the IDF, other functions were exercised by the Palestinians, and there were also shared powers. Though the Palestinians do not have an independent state, they technically can not be considered to be under “occupation” when at the same time they were being ruled by the Palestinian Authority;  Mahmoud Abbas.

In their propaganda war pro-Palestinian groups, and their allies on the far left, have embraced the use of the term “occupation” as part of their rhetorical arsenal, along with the terms advocated in Arafat's infamous 1974 speech that diabolically labeled Israel as a “colonialist, apartheid state.” They have succeeded in waging political warfare against Israel by manipulating the truth and facts.

The heinous charge of “occupation” has evolved into one of the most potent weapons in the delegitimization campaign against Israel. Therefore the decision to use the term “occupation” as a means of harsh criticism appears to emanate as much from political considerations as it does from any legal analysis.

According to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on September 13, 2007, the Jews are the indigenous people of the lands referred to as Judea, Samaria.

Furthermore, the Inter-American Commission on Human Rights declared that "there is an international customary law norm which affirms the rights of indigenous peoples to their traditional lands".

The Balfour Declaration of 1917, the Treaty of Lausanne (1923), British Mandate for Palestine (1922), San Remo Resolution (1920), and Treaty of Sevres (1920) created international law, and recognized and re-established the historical indigenous rights of the Jews to their land. The signatories of these treaties and the Mandate (Britain, France, Turkey, Japan, Italy, etc.), are bound by them.

UN General Assembly Resolutions stating that the settlement of Jews in Judea Samaria is contrary to international law are no more than recommendations and have never led to amendments of existing binding treaties since ONLY resolutions taken under Chapter VII of the UN Charter are binding on all UN member states.

The last word: The 3rd Chamber of the Court of Appeal of Versailles

All of the above is overshadowed by the 2013 decision by the 3rd Chamber of the Court of Appeal of Versailles. The French Court ruling over a previous decision found that Israel’s presence in Judea and Samaria is unequivocally legal under international law, dismissing a suit brought by the Palestinian Authority (PA) against Jerusalem’s light rail built by French companies Alstom and Veolia

To rule on the suit, the Court of Appeals had to determine the legal rights of Palestinians and Israelis in the region.
Their conclusion was that the Palestinians have no right – in the international legal sense – to the region, unlike Israel, who is legitimately entitled to all land beyond the 1949 ceasefire lines to the Jordan River 1967 Ceasefire line and now 1995 Jordanian- Israeli negotiated peace border.

The Court explained that the PA misinterpreted the texts and they do not apply to Israel presence in Judea and Samaria.

All the international instruments put forward by the PLO were acts signed between states, and the obligations or prohibitions contained therein are relevant to states. Neither the PA nor the PLO are states, and therefore, none of these legal documents apply to them.

Likewise, the Court showed that these texts are binding only on those who signed them, namely the contracting parties. Neither the PLO nor the PA have ever signed these texts.
The Court, quite irritated by the arguments presented by the PA, boldly asserted that the law cannot be based solely on the PLO’s assessment of a political or social situation.

The Court of Appeal therefore sentenced the PLO and Association France Palestine Solidarité (AFPS), who was co-appellant, to pay 30,000 euros ($32,000) to Alstom, 30,000 euros to Alstom Transport and 30,000 euros to Veolia Transport.

Neither the PLO nor the Palestinian Authority nor the AFPS appealed to the Supreme Court, and therefore the judgment became final.

This was the first time that a NON ISRAELI Court has legally destroyed all Palestinian legal claim that Israel’s occupation is illegal.

From the Preamble of the Mandate For Palestine:

The Council of the League of Nations:

Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of theCovenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, "  

"Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, ...Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country..."

The Conclusion is always the same: the Jewish people have been betrayed many times over by the Nations of the world who do not abide by their own agreements that they have themselves formulated.