Last week, I began offering a critique of the argument that the settlements in what is known as the West Bank are illegitimate and that Israel is allegedly a settler colonizer. I discussed such salient points as the Jewish people being indigenous to Israel and the Levant region generally, that a sovereign Arab nation of Palestine has never existed, that Israel is not trying to replace the Arab population (which would be a key criterion of a settler colonizer), or that settlements are not an obstacle to peace. In this Part, I am going to illustrate the finer legalese and how Israel has legal claims not only to Israel, but also the West Bank.
Israel acquired the West Bank fair and square. For Israel to be considered a settler colonizer, it would have to be an occupier of foreign land. To understand Israel's legal claim to the land, we need to go back to 1922, which is when the Mandate of Palestine was signed. This Mandate gave the Jews their own state, as well as established most of the current borders in the Middle East. The British gave the Jews everything west of the Jordan River, which would include the land now known as the West Bank. Article 5 of the Mandate states that none of the territory [of what is now Israel] shall be ceded to a foreign power. Article 80 of the U.N. Charter de jure enshrined the Mandate in international law and the Mandate has thus not been countermanded to this day. Both the State of Israel and the United Nations' General Assembly and Security Council accepted Israel's claim to the land relinquished by Great Britain as of May 1949.
Jordan's illegal occupation of the West Bank. In reality, it was Jordan who belligerently and illegally occupied the West Bank from 1948 to 1967. With the exception of Pakistan and Great Britain, Jordan's annexation was not recognized by the international community. This is why the Green Line (also known as the armistice line) established neither a political nor territorial boundary that has a claim in international law, per the Armistice Agreement that Israel and Jordan signed in 1949 (Article II.2).
Israel ended Jordan's illegal occupation by taking control of the territory in a war of self-defense in 1967, a war which was legal and proper under jus ad bellum because Article 51 of the U.N. Charter permits a nation to defend itself from an attack. And no, UN Resolution 242 does not obligate Israel to withdraw from the West Bank because certain language was deliberately eschewed to avoid that outcome. This means that Israel is NOT an occupier of the West Bank. If anything, Israel won back territory that legitimately belonged to Israel in the first place. You cannot be an occupier of your own land. This, of course, forgets the reality that nearly any piece of territory held in sovereignty throughout human history was gained through war and military conquest. You can view legal expert and George Mason University Professor Eugene Kontorovich's explanation of the land dispute in the video below.
Even if Israel did not have legal claims to the land with the Mandate of Palestine, it does not matter. Why would I say this? The Fourth Geneva Convention provides the legal basis for occupied territory. For a territory to be recognized as occupied under the Convention, the territory would have to change hands in a way where one country takes control of foreign territory. We established in a previous point that Israel had legal claims. But even if it did not, there was only one other country that controlled the territory: Jordan.
Even if one erroneously considers Israel's 1967 annexation of the West Bank as occupation, Jordan had already relinquished its claims to the West Bank in 1988. Moreover, Jordan recognized the West Bank as a part of Israel in the 1994 peace treaty between Israel and Jordan (see Article III of the agreement here). Palestine never controlled the territory because as previously mentioned in Part I, the Arab state known as Palestine has never been a sovereign nation-state. Plus, the entity known as Palestine is not a signatory to the Geneva Convention, which means the Geneva Convention does not apply to the West Bank or the settlements. Even if the Geneva Convention were to apply to Palestine, it still does not matter because per the Oslo Accord, Israel has full jurisdiction over 60 percent of the West Bank (also known as Area C) to live and build on the land.
The ICJ has ignored other similar cases in other countries. We have shown that Israel has solid legal claims and that the Geneva Convention does not apply. Even if the Geneva Convention were to apply to this case, the West Bank is not the only instance in which such conduct with settlements occurred. There are other places throughout the world where comparable conduct has taken place, whether it has been Morocco in the Western Sahara, Indonesia in East Timor, Turkish-occupied northern Iraq, or Vietnamese-occupied Cambodia. It is funny how the United Nations has declined to invoke Article 49(6) of the Geneva Convention in those other cases while only invoking it in the case of Israel. I wonder why that could be.
Conclusion. Nothing in the U.N. Charter makes it a decider of international law. It is a relief for Israel since the United Nations has had an axe to grind with Israel at least since 1975 when the UN General Assembly voted that Zionism is racism in UN Resolution 3379, which was later reversed in 1991. With such animus, it makes sense why Israel never signed the treaty to establish the ICJ, thereby not being under the jurisdiction of the ICJ. But it is more than that the United Nations' anti-Israel bias (especially with UNRWA) where I can tell the ICJ it can go pound sand.
By and large, Israel's settlements are far from being illegal. Israel has the strongest legal and historic claim to the land known as the West Bank. The Jewish people have had a presence in Judea and Samaria for three millennia, which makes sense since Jews are indigenous to the land. The Jewish people have a standing in international law that dates back more than a century. Since Palestine has never been a sovereign nation, it does not have legal standing to the West Bank nor does it have standing under the Geneva Convention because Palestine is not a signatory. Plus, the PLO signed the Oslo Accords, which gave Israel jurisdiction in 60 percent of the West Bank to build settlements.
The ICJ is quick to ignore historical, security, and legal complexities of the Middle Eastern conflict if it means making a political statement to put pressure on Israel in a volatile moment in the region. The ICJ's majority claim is nothing more than another attempt from the so-called "international community" to delegitimize the claim of the Jewish people on the land of Israel. In summation, the entity known as Palestine has no legal claims to the West Bank, which means that the settlements in the West Bank are legal and legitimate.
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