{Previously published in The Jerusalem Post}
Ten years ago, I was briefing a senator and her chief of staff about the complex nature of international law regarding the building of Israeli communities, i.e., settlements over the 1949 Armistice line (1967 Line or Green Line), in land claimed by the Palestinian Arab people as their future national home. They thanked me for new information, which surprised me, telling me that the leading pro-Israel groups almost never mention anything about settlements, not even the militarily essential ones in the Jordan River Valley that are supported by many Israelis. So I filled in the blanks.
Does Israel have any legal rights over the 1967 Line?
Is every Israeli settlement over the 1967 line a violation of the international law, including Judaism’s holiest site, the Western Wall?
What does international law say about settlement in non-populated areas of disputed territory acquired in a defensive war?
When I was a guest lecturer in a Middle East Studies class at a major university and when I began explaining what I thought was a straight-forward explanation of UNSC Resolution 242, the basis for all international agreements and negotiations between the Israelis and Palestinians, the Lebanese professor who invited me to speak told me that I mistranslated the text. I said the text said Israel was to withdraw from “territories” it captured during the 1967 Six Day War, the authors specifically leaving out the indefinite article “the” to imply it didn’t have to return from 100% of the occupied area.
The professor said the correct translation in Arabic was “the territories” meaning Israel must completely withdraw, so I retorted that it was written in English, citing the words of the authors of the resolution who explained that it was written purposely without “the,” as they never expected or required Israel to return to the indefensible borders of 1967. He was unpersuaded, but students who came up to me afterward thanked me for adding some gray to the black or white picture the professor had painted regarding Israel and the territories in question.
When US Secretary of State Mike Pompeo recently announced that Israeli settlements are not per se illegal, it touched off a political firestorm with partisans going into their corners citing international law without actually looking at the complexities of the issue or what a non-politicized version of international law actually says.
Whether it is wise for Israel to have their current settlement policy is a different question. But not differentiating between settlements based on security issues like the Jordan River Valley, or rather, as defined by the professor as any Jewish presence over the ‘67 line, which would include the Western Wall of the old Jewish quarter of Jerusalem, makes an eventual resolution of the conflict almost impossible.
Adding to the complexity was President Barack Obama’s parting shot at the end of his term to Prime Minister Netanyahu, with the American orchestration of UNSC Resolution 2334, which declared an Israeli presence of one centimeter over the 1967 line as a “flagrant violation of international law,” contradicting UNSC 242, and hardening the Palestinian position.
SO WHAT does international law actually say about the issue? A recent Democrat-penned letter that garnered more than 100 signatures cited a 1978 opinion by State Department legal counsel Herbert Hansell that said Israel’s settlements violate Article 49 of the 1949 Fourth Geneva Convention, prohibiting the deportation of its civilian population into the disputed area.
What he chooses to ignore is that this prohibition was specifically written because of what the Nazis did during World War II, where they forcibly transferred their populations into occupied lands that they ethnically cleansed of Jews for colonization and for racial reasons. Comparing Israel’s settlement policy to a policy designed to prevent a recurrence of Nazi fascism is not only inaccurate but obscene.
According to Alan Baker, defenders of Israel’s settlement policy have international law on their side, citing Article 80 of the UN Charter, which memorialized the Balfour Declaration, the San Remo Declaration and the League of Nations Mandate for Palestine, granting Israel rights in today’s contested territories over the 1967 Line (West Bank or Judea and Samaria).
In addition, from 1949 to 1967, the area was claimed by Jordan, but the international community, with the exception of Pakistan and Britain, did not recognize that claim. Since the last legal stakeholder of the land was the Ottoman Empire, which had dissolved after World War I, the land was best described as disputed after Israel captured the territory during the Six Day War.
Why is this important even if you believe the eventual resolution of the conflict is two states for two peoples and an Israeli return to the 1967 lines with land swaps, which is what many of those who signed Congressional letter believe?
Because if Israel in a negotiated settlement with the Palestinian Authority is ceded any territory over the 1967 line, whether for defensive reasons or part of a land swap, it will always be viewed as a burglar returning only part of his ill-gotten gains, setting up a pretext for future generations of Palestinians to undermine any settlement in the future.
Israel’s legal rights over the 1967 line must be recognized for there to be a solution to the Israeli-Palestinian conflict. Counterintuitive, yes, but considering the failures of all previous negotiations, it is something that should be championed for those who want both a Jewish state and an Arab state.The writer is the director of MEPIN, the Middle East Political Information Network. Dr. Mandel regularly briefs members of the Senate, House, and their foreign policy advisers, as well White House advisers. He is a columnist for The Jerusalem Post, and a contributor to The Hill, i24TV, JTA, Defense Post, JNS, The Forward and has appeared in RealClearWorld.