The Rights of Settlers
The Palestinian Liberation Organization has called for an urgent meeting of the UN Security Council to discuss the Jewish settlements in the West Bank and east Jerusalem. The PLO wants to UN member states to table a resolution condemning Israeli settlement activity. In a statement, the PLO said the rise in settlement activities is “proof of a dangerous Israeli government plan to undermine the two-states solution.”
The majority of UN member states will no doubt relish the opportunity to help the PLO condemn the Jewish state. But it is a common misperception that the building of settlements is an impediment to peace between Israel and the Palestinians.
In truth, the primary obstacle to peace is the Palestinian refusal to recognize Israel's right to exist as a Jewish state and the unwillingness to allow a Jewish minority in a Palestinian state.
The legality of the West Bank
In 1920, the San Remo Conference assigned to Britain a mandate to establish a Jewish national home on territory covering what would become Israel, Jordan and part of the Golan Heights. In early 1921, Britain made a distinction between Palestine as a national home for the Jewish people, and Transjordan as a home for the Arabs.
The Mandate of Palestine, which was confirmed by the League of Nations in 1922, formalized the creation of a Jewish national homeland, as well as Transjordan. The Mandate incorporated the 1917 Balfour Declaration, which endorsed the “establishment in Palestine of a national home for the Jewish people.” The Mandate legalized the immigration of Jews to Palestine and encouraged close settlement of the land.
Two years after the Second World War, the British handed the Mandate to the UN, which recommended (rather than enforced) the partition of Palestine between Jews and Arabs. The Jews accepted the partition but the Arab states rejected it and declared war on the Jewish homeland, which resulted in the annexation of the West Bank by Jordan. At the insistence of the Arabs, the 1949 armistice line was “not to be construed in any sense as a political or territorial boundary.”
In 1967, Israel won control of the West Bank after a war of self-defence. UN Security Council Resolution 242 recommended Israeli withdrawal from territories in return for the right “to live in peace within secure and recognized boundaries free from threats or acts of force.” Unfortunately, the Arab states once again rejected the UN’s proposal. Moreover, the second article of the Fourth Geneva Convention is not applicable to the West Bank because it pertains only to cases of occupation of a sovereign entity. Jordan was never a recognized sovereign of the West Bank, which means Israel is not an occupier.
The legality of the settlements
Legally, the West Bank is unclaimed Mandate land and should be referred to as “disputed” territory. As such, the settlements are entirely legal as long as they are in the parameters of the 1922 Mandate, which has never been superseded in law, not even by the 1947 partition plan. Israel’s capture of the West Bank in 1967 merely restored the territory to its legal status under the Mandate of 1922. The settlers are simply enacting this mandate.
Even if it could be proved that Israel is an occupant, many of the Jewish settlements are still permitted under international law. Article 49 of the Fourth Geneva Protocol does not prohibit Israeli civilians from acting on their own initiative by settling among the Palestinian Arabs. Other settlements are there for security reasons. Building up the areas around east Jerusalem reduces the risk of the capital falling to an Arab army invading from the east. Again, this is permissible under the Article 49 of the Fourth Geneva Protocol.
The fact that the Palestinians and the Arab states collaborated with Hitler, and then proceeded to invade Israel on three occasions between 1948 and 1973, seriously undermines any moral claim to establish a state on the West Bank. Besides, the West Bank, traditionally known as Judea and Samaria, is historically and religiously Jewish. It is home to several sacred sites and two of Judaism’s holiest cities (east Jerusalem and Hebron). Jerusalem was under Islamic control for centuries, but on no occasion did any Muslim entity declare it as their capital.
Moreover, non-Jewish powers cannot be trusted to protect Jews or Jewish sites. Until 1948, Jews had lived in Judea and Samaria for hundreds of years. During the Jordanian occupation, the Jewish cemetery on the Mount of Olives was desecrated and synagogues destroyed. In addition, Jews were forbidden from praying at their holiest place – the Western Wall. And let’s not forget that Hebron was ethnically cleansed of Jews by the Palestinian Arabs in 1929. Following the 1967 war, many Jews were eager to commemorate the massacre by settling in Hebron.
An impediment to peace?
Between 1948 and 1967, there was not a single settlement in Gaza or the West Bank. But the Arab states refused to make peace with Israel. Nor did the Arab states attempt to establish a Palestinian state on the West Bank and in Gaza between 1948 and 1967. Furthermore, the dismantling of Jewish homes and the withdrawal of Israelis from Gaza in 2005 should have led to a cold peace. Instead, the Palestinians elected Hamas, which resulted in an upswing in terrorism. In short, a peaceful resolution to the Israeli-Palestinian conflict has never been about the settlements.
Of course, it is a reasonable assumption that the settlements will play a part in final negotiations. And if a two-state solution is reached, it must be possible to allow a Jewish minority to remain in a Palestinian state, in the same way that one in five Israelis are Arabs. After all, many of the Jews in the West Bank were born there. As such, Palestinian demands for UN condemnation of the settlements is both racist and illegal.