Home inSight Special Report: Close Settlement on the Land (Part II)

Special Report: Close Settlement on the Land (Part II)

Eugene Rostow
An Israeli warplane flies over IDF ground forces during the 1967 war.

The Editors at inSIGHT are departing from our usual pattern of writing and publishing in this - the second in a series of three columns - to balance the scales at least a bit and put history and law regarding Israel and Jewish "close settlement on the land" in their rightful place. This is a response to UN Security Council Resolution 2334 and to the presumed outcome of the Paris "Peace" conference Sunday.

Professor Eugene V. Rostow (1913-2002) served as dean of Yale Law School, Undersecretary of State for Political Affairs, and director of the US Arms Control Agency. He co-authored UN Security Council Resolution 242 and was prolific on the role of international law in determining how and where Jews could settle. It is not a spoiler to say his view was “everywhere.” The following is excerpted from his authoritative 1980 Yale International Law Journal article, “Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate.” To read Part I click here.

Part II

While the Permanent Court of International Justice, its successor the International Court of Justice, and many other authorities have confirmed the status of mandates in general and of the Palestine Mandate in particular, the dispute over the future of German Southwest Africa, long a South African Mandate, and now generally called Namibia, has been the most prolific and important source of international law on the subject.

In its series of decisions and advisory opinions on Namibia, the International Court of Justice has ruled that a League Mandate is a binding international instrument like a Treaty, which continues as a fiduciary obligation of the international community until its terms are fulfilled.  All states, the Court, and the Security Council have responsibility for seeing to it that the terms of the Mandate are respected and carried out…

In Palestine, Israel and Jordan already exist as states, and only the Gaza Strip and the West Bank remain as unallocated parts of the Mandate. The reasoning of the Namibia decisions requires that the future of these two territories be arranged by peaceful international agreement in ways that fulfill the policies of the Mandate.

Jewish rights of “close settlement” in the West Bank are derived from the Mandate. Therefore, they exist; it is impossible seriously to contend, as the United States government does [with the Carter administration’s March 1, 1980 vote for a Security Council resolution calling on Israel to dismantle all post-June 19967 West Bank Jewish communities], that Israeli settlements in the West Bank are illegal.

It is true that since the Six-Day War in 1967 the United States government has taken the nominal position that Israel held the Sinai, the Golan Heights, the West Bank, and the Gaza Strip only as the military occupant under international law. The State Department has maintained that under Article 49 of the Fourth Geneva Convention, a state administering the territory of another state as military occupant cannot in the absence of military necessity or governmental need displace the inhabitants of the territory and establish its own citizens in their place. The Department’s position is in error; the provision was drafted to deal with “individual or mass forcible transfers of population,” like those in Czechoslovakia, Poland, and Hungary before [, during] and after the Second World War. Israeli administration of the areas has involved no forced transfers of population or deportations.

The Israelis responded to the State Department in an argument of great cogency, which the State Department has never answered. The Israeli view is that while the 1907 Hague Convention and the 1949 Geneva Convention apply to the Israeli occupation of the Golan Heights and the Sinai, which are Syrian or Egyptian territory in the contemplation of international law, they do not apply to the Israeli occupation of the West Bank and the Gaza

Strip, which have not been recognized as parts of any state, but are still unallocated territories of the Palestine Mandate.

In terms, the 1949 Geneva Convention simply does not deal with the situation in Palestine, in which neither Jordan in the West Bank nor Egypt in the Gaza Strip could claim after 1967 that its prior administration was that of the legitimate sovereign whose rights were temporarily displaced by the fortunes of war. In the telling phrase of Professor Yehuda Blum, the “reversioner” was missing.  Israel’s claim to the area is at least as good as Jordan’s.

Since the Conventions deal only with military occupation by one state of territory belonging to another, Israel said, it is not obliged to apply the Conventions in the West Bank and the Gaza Strip. But it vowed to do so in general terms as a matter of its own policy.

The disagreement between the United States and Israel on this subject has slumbered for years. No effort was made to push it to a definite conclusion until the Carter Administration, with its enthusiasm for the so-called “Palestinian” cause, took office in 1977, Before 1977, it was assumed that the controversy would be resolved when Jordan and Israel made peace.

For present purposes, it suffices simply to conclude that Israel’s legal position with regard to its right of settlement in the West Bank is impregnable.

The American argument, weak at best in terms of the language and history of the 1949 Geneva Convention, has been further eroded by the development of international law since 1967 in connection with the future of Namibia, which the State Department’s statements on the subject do not discuss, and by the Camp David agreements.

The State Department should long since have reconsidered its 1967 position about Israeli settlements in the West Bank in the light of the principles confirmed by the Namibia decisions. It is obvious that Israel’s position in the West Bank and the Gaza Strip is much more than that of a military occupant under international law. According to the reasoning of the Namibia decisions, Israel’s right under the Palestine Mandate – including its right of close [Jewish] settlement in the West Bank – survived the end of the Mandate and will continue until Jordan and Israel settle what is essentially a territorial dispute between them, make peace, and divide the land in accordance with the provisions of Security Council Resolution 242, which is based on the Mandate.

The case for treating the West Bank and the Gaza Strip as “Arab” territory is not helped by contending that the existing population of the area is largely Arab. That was true for all of Palestine, except for Jerusalem, when the Mandate was established. Jewish settlement in a land then populated mainly by Arabs is what the Mandate specifically authorizes.

The government of the United States often complains that Israeli settlements in the West Bank are a political obstacle to peace even if they are not “illegal,” because they deter Jordan from making peace. But Jordan would not make peace between 1949 and 1967 when it occupied the West Bank and administered it as national territory. At that time, there were no Israeli settlements in the West Bank… Perhaps Israeli settlement in the West Bank would stimulate Jordan to make peace, by making it clear that its continued refusal to make peace is not costless, and that it cannot expect conditions to remain unchanged indefinitely.

Whether Israeli settlement in the West Bank is a wise political tactic at any given time is not, however, the subject of this paper. To explore that issue under the circumstances of any particular period in the history of the Mandate would be an exercise in speculation. For present purposes, it suffices simply to conclude that Israel’s legal position with regard to its right of settlement in the West Bank is impregnable.

The Role of the Security Council

The next step in the analysis goes beyond the Mandate to the long cycle of Security Council decisions on how to achieve peace between Israel and its neighbors, and to the Camp David Agreements, which seek to implement those Security Council Resolutions.

In 1947, finding that the twin purposes of the Mandate were irreconcilable, Great Britain announced that it would give up the Mandate in 1948, and turn the problem over to the United Nations as successor to the League of Nations. The Security Council had received a Report from the General Assembly, recommending that it adopt a plan for partitioning what was left of the Mandate (after the establishment of Transjordan) into an Arab state and a Jewish state, with a special regime for Jerusalem, and arrangements for cooperation among the peoples and governments of the territory. The British and many others concerned with the problem expected Transjordan to absorb the territories allocated to the Arab state under the 1947 Partition plan.

The Security Council did not accept the General Assembly’s recommendations. It did nothing. Israel declared its independence as the Jewish state contemplated by the partition plan. But the Arab states in the area made war on Israel on the grounds that (1) the Mandate was and always had been illegal; (2) the General Assembly’s Partition plan was a nullity; (3) upon the withdrawal of Great Britain from Palestine the inchoate sovereignty of the Palestinian people in the territory had to be acknowledged; and (4) the establishment of Israel was “an armed attack on the territorial integrity and political independence of the emerging state of Palestine,” which the people of Palestine and their neighbors had a right to resist in the name of self-defense, according to Article 51 of the Charter.

The first Arab-Israeli war of 1948-49 came to an end under the twin pressures of Israeli military success and international political urging. The Security Council issued several binding “decisions,” ordering the parties to sign armistice agreements, and then to make peace. The Armistice Agreements were duly signed, but peace did not follow. The conflict over Israel’s right to exist was caught up in the Cold War, which was rapidly spreading to areas near the boundaries of the Soviet Union in Asia and Europe.

Thus, four major wars against Israel took place after 1949 – those of 1956, 1967, 1973, and the war of attrition of 1969-70. In each of these episodes, and throughout the continuing cycle of guerrilla attacks against Israel, Soviet involvement on the Arab side was heavy, and often decisive. Each of the wars ended in a political settlement of sorts. The 1956 war was followed by an informal and largely invisible agreement between Israel and Egypt…

Through this accord, the Israelis agreed to withdraw from the Sinai, and Egypt promised to open the Strait of Tiran and the Suez Canal to Israeli shipping; to prevent guerrillas from operating against Israel from its territory; and in due course, to make peace.

Resolution 242

The unhappy fate of the 1957 peace agreement was a decisive factor shaping Security Council Resolution 242, which followed the Six-Day War in 1967 after five months of strenuous diplomatic effort and military testing. Resolution 242 returned to the principles of Resolution 62, adopted in 1948. It called for peace, and for an end to all claims on the part of the Arabs that a state of belligerence existed between Israel and its neighbors. In view of the refusal of the Arabs to carry out their earlier commitments to make peace with Israel, Resolution 242 was based on the principle that Israel had no obligation to withdraw from any territories occupied in the course of the war until the Arab states concerned actually made peace. Israeli occupation of the territories it took in 1967, that is, was “the gage of peace,” in the phrase used by a French scholar.

Resolution 242 also provided that when peace was made, the Israelis should withdraw to “secure and recognized” boundaries, which need not be the same as the Armistice Demarcation Lines of 1949, as the Armistice Agreements themselves had contemplated. The “secure and recognized” boundaries were to be reached by agreement. In negotiating those agreements, the parties could take into account considerations of security; guarantees of maritime rights through all the international waterways of the region; factors of equity in rectifying the armistice lines (which after all reflected no more than the position of the armies when the fighting stopped in 1949); and the respective legal claims of the parties to the territory in question.

Between 1967 and 1973, all efforts to carry out the terms of Resolution 242 failed. The Arab states stood on their Khartoum Declaration or 1967 – “no peace, no recognition, no negotiations.” What the Arab states wanted was the pattern of 1957, i.e., Israeli withdrawal at least to the 1967 boundaries without peace. This, of course, was exactly what Resolution 242 prohibited.