CAMERA Alert: Are settlements illegal under international law? Two articles
by Eugene W.Rostow set the record straight

Committee for Accuracy in Middle East Reporting in America
www.camera.org

Shalom CAMERA E-Mail Team:

Recently, many mainstream American news outlets have been erroneously
reporting that Israeli settlements in the West Bank and Gaza Strip are
illegal. Please read the following articles by Eugene Rostow, a former
Distinguished Fellow at the U.S. Institute of Peace, which will provide
you with critical background information to respond to false claims
about the legality of settlements.

If your local media falsely characterizes Israeli settlements in Gaza
and the West Bank as illegal under international law, place a call to
the foreign editor requesting a correction. Also, please write a
letter-to-the-editor for publication.

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Copyright 1991 The New Republic Inc.
The New Republic, October 21, 1991

HEADLINE: Resolved: are the settlements legal? Israeli West Bank policies
BYLINE: Rostow, Eugene W.

Assuming the Middle East conference actually does take place, its
official task will be to achieve peace between Israel and its Levantine
neighbors in accordance with Security Council Resolutions 242 and 338.
Resolution 242, adopted after the Six-Day War in 1967, sets out criteria for
peace-making by the parties; Resolution 338, passed after the Yom Kippur War
in 1973, makes resolution 242 legally binding and orders the parties to
carry
out its terms forthwith.
Unfortunately, confusion reigns, even in high places, about what those
resolutions require.

For twenty-four years Arab states have pretended that the two
resolutions are "ambiguous" and can be interpreted to suit their desires.
And some European, Soviet and even American officials have cynically allowed
Arab spokesman to delude themselves and their people--to say nothing of
Western public opinion--about what the resolutions mean. It is common even
for American
journalists to write that Resolution 242 is "deliberately ambiguous," as
though the parties are equally free to rely on their own reading of its key
provisions.

Nothing could be further from the truth. Resolution 242, which as
undersecretary of state for political affairs between 1966 and 1969 I helped
produce, calls on the
parties to make peace and allows Israel to administer the territories it
occupied in 1967 until "a just and lasting peace in the Middle East" is
achieved. When such a peace is made, Israel is required to withdraw its
armed
forces "from territories" it occupied during the Six-Day War--not from "the"
territories nor from "all" the territories, but from some of the
territories,
which included the Sinai Desert, the West
Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.

Five-and-a-half months of vehement public diplomacy in 1967 made it
perfectly clear what the missing definite article in Resolution 242 means.
Ingeniously drafted
resolutions calling for withdrawals from "all" the territories were defeated
in the Security Council and the General Assembly. Speaker after speaker made
it explicit that Israel was not to be forced back to the "fragile" and
"vulnerable" Armistice Demarcation Lines, but should retire once peace was
made to what Resolution 242 called "secure and recognized" boundaries,
agreed
to by the parties. In
negotiating such agreements, the parties should take into account, among
other factors, security considerations, access to the international
waterways
of the region,
and, of course, their respective legal claims.

Resolution 242 built on the text of the Armistice Agreements of 1949,
which provided (except in th case of Lebanon) that the Armistice Demarcation
Lines separating the military forces were "not to be construed in any sense"
as political or territorial boundaries, and that "no provision" of the
Armistice Agreements "Shall in any way prejudice the right, claims, and
positions" of the parties "in the ultimate peaceful settlement of the
Palestine problem." In making peace with Egypt in 1979, Israel withdrew
from
the entire Sinai, which had never been part of the British Mandate.

For security it depended on patrolled demilitarization and the huge area of
the desert rather than on territorial change. As a result, more than 90
percent of the territories Israel occupied in 1967 are now under Arab
sovereignty. It is hardly surprising that some Israelis take the view that
such a transfer fulfills the territorial requirements of Resolution 242, no
matter how narrowly they are construed.

Resolution 242 leaves the issue of dividing the occupied areas between
Israel and its neighbors entirely to the agreement of the parties in
accordance with the principles it sets out. It was, however, negotiated with
full realization that the problem of establishing "a secure and recognized"
boundary between Israel and Jordan would be the thorniest issue of the
peace-making process. The United States has remained firmly opposed to the
creation of a third Palestinian state on the territory of the Palestine
Mandate. An independent Jordan or a Jordan linked in an economic union with
Israel is desirable from the point of view of everybody's security and
prosperity. And a predominantly Jewish Israel is one of the fundamental
goals
of Israeli policy. It
should be possible to reconcile these goals by negotiation, especially if
the
idea of an economic union is accepted.

The Arabs of the West Bank could constitute the population of an
autonomous province of Jordan or of Israel, depending on the course of the
negotations.
Provisions for a shift of populations or, better still, for individual
self-determination are a possible solution for those West Bank Arabs who
would prefer to live elsewhere. All these approaches were explored in 1967
and 1968. One should note, however, that Syria cannot be allowed to take
over
Jordan and the West Bank, as it tried to do in 1970.

The heated question of Israel's settlements in the West Bank during the
occupation period should be viewed in this perspective. The British Mandate
recognized the right of the Jewish people to "close settlement" in the whole
of the Mandated territory. It was provided that local conditions might
require Great Britain to "postpone" or "withhold" Jewish settlement in what
is now Jordan. This was done in 1992. But the Jewish right of settlement in
Palestine west of the Jordan river, that is, in Israel, the West Bank,
Jerusalem, and the Gaza Strip, was made unassailable. That right has never
been terminated and cannot be terminated except by a
recognized peace between Israel and its neighbors. And perhaps not even
then,
in view of Article 80 of the U.N. Charter, "the Palestine article," which
provides that
"nothing in the Charter shall be construed ... to alter in any manner the
rights whatsoever of any states or any peoples or the terms of existing
international instruments...."

Some governments have taken the view that under the Geneva Convention of
1949, which deals with the rights of civilians under military occupation,
Jewish
settlements in the West Bank are illegal, on the ground that the Convention
prohibits an occupying power from flooding the occupied territory with its
own citizens. President Carter supported this view, but President Reagan
reversed him, specifically saying that the settlements are legal but that
further settlements should be deferred since they pose a psychological
obstacle to the peace process.

In any case, the issue of the legality of the settlements should not
come
up in the proposed conference, the purpose of which is to end the military
occupation by
making peace. When the occupation ends, the Geneva Convention becomes
irrelevant. If there is to be any division of the West Bank between Israel
and Jordan, the Jewish right of settlement recognized by the Mandate will
have to be taken into account in the process of making peace.

This reading of Resolution 242 has always been the keystone of American
policy. In launching a major peace initiative on September 1, 1982,
President
Reagan said, "I have personally followed and supported Israel's heroic
struggle for survival since the founding of the state of Israel thirty-four
years ago: in the pre-1967 borders, Israel was barely ten miles wide at its
narrowest point. The bulk of Israel's population lived within artillery
range
of hostile Arab armies. I am not about to ask Israel to live that way
again."

Yet some Bush administration statements and actions on the Arab-Israeli
question, and especially Secretary of State James Baker's disastrous speech
of May 22, 1989, betray a strong impulse to escape from the resolutions as
they were negotiated, debated, and adopted, and award to the Arabs all the
territories between the 1967 lines and the Jordan river, including East
Jerusalem. The Bush administration seems to consider the West Bank and the
Gaza Strip to be "foreign" territory to which Israel has no claim. Yet the
Jews have the same right to settle there as they have to settle in Haifa.
The
West Bank and the Gaza Strip were
never parts of Jordan, and Jordan's attempt to annex the West Bank was not
generally recognized and has now been abandoned. The two parcels of land are
parts of the Mandate that have not yet been allocated to Jordan, to Israel,
or to any other state, and are a legitimate subject for discussion.

The American position in the coming negotiations should return to the
fundamentals of policy and principle that have shaped American policy
towards
the Middle East for three-quarters of a century. Above all, rising above
irritation and pique, it should stand as firmly for fidelity to law in
dealing with the Arab-Israeli dispute as President Bush did during the Gulf
war. Fidelity to law is the essence of peace, and the only practical rule
for
making a just and lasting peace.

EUGENE V. ROSTOW is a Distinguished Fellow at the United States
Institute of Peace.

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Copyright 1990 The New Republic Inc.
The New Republic
April 23, 1990

HEADLINE: Bricks and stones: settling for leverage; Palestinian autonomy

BYLINE: Rostow, Eugene V.

Over the past several weeks the long-standing American objection to
further Israeli settlements in the West Bank has been pressed by the Bush
administration with new vehemence. The outcome of this argument is crucial.
It will affect the substance, fairness, and durability of any peace that may
emerge.

With varying degrees of seriousness, all American administrations since
1967 have objected to Israeli settlements in the West Bank on the ground
that
they would make it more difficult to persuade the Arabs to make peace.
President Carter decreed that the settlements were "illegal" as well as
tactically unwise. President Reagan said that the settlements were legal but
that they did make negotiations less likely. The strength of the argument is
hardly self-evident. Jordan occupied the West Bank for nineteen years,
allowed no Jewish settlements, and showed no sign of wanting to make peace.
Yet if the West Bank were 98 or 100 percent Arab when the
parties finally reached the bargaining table, the impulse to accept a peace
that ceded the whole of the West Bank to an Arab state would be tempting to
Americans and Europeans, and even to some weary Israelis. The growing
reality
of Israeli settlements in the area, on the other hand, should be a catalyst
for peace, by imposing a price on the Arabs for their refusal to negotiate.
But the American government keeps reciting the old formula.

Secretary of State James Baker has gone beyond previous American
positions by threatening to cut aid if the Israelis build more settlements
in
the West Bank. He
spoke after Arab protests against the possibility of large numbers of Soviet
Jews settling in Israel, particularly in the West Bank. Wouldn't it have
been
more useful if Baker had told his Arab interlocutors that if they want any
parts of the West Bank to become Arab territory, they should persuade Jordan
and the Arabs living in the occupied territories to make peace with Israel
as
rapidly as possible? Since 1949 the
U.N. Security Council has repeatedly urged and occasionally commanded the
Arab states to make peace, most recently in Resolutions 242 and 338. Thus
far, with the
exception of Egypt in 1977, they have simply refused to comply. But Baker
yielded to the Arab outcry, and is trying to maneuver Israel into a position
that no Israeli majority can accept: to renounce the right of settlement "of
the Jewish people"-in the words of the Mandate-in any part of the West Bank.

The Jewish right of settlement in the West Bank is conferred by the
same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv,
and Jerusalem before the State of Israel was created. The Mandate for
Palestine differs in one important respect from the other League of Nations
mandates, which were trusts for the benefit of the indigenous population.
The
Palestine Mandate, recognizing "the historical connection of the Jewish
people with Palestine and the grounds for reconstituting their national home
in that country," is dedicated to "the establishment
in Palestine of a national home for the Jewish people, it being clearly
understood that nothing should be done which might prejudice the civil and
religious rights of
existing nonjewish communities in Palestine, or the rights and political
status enjoyed by Jews in any other country."

The Mandate qualifies the Jewish right of settlement and political
development in Palestine in only one respect. Article 25 gave Great Britain
and the League Council
discretion to "postpone" or "withhold" the Jewish people's right of
settlement in the TransJordanian province of Palestine-now the Kingdom of
Jordan-if they decided that local conditions made such action desirable.
With
the divided support of the council, the British took that step in 1922.

The Mandate does not, however, permit even a temporary suspension of the
Jewish right of settlement in the parts of the Mandate west of the Jordan
River. The
Armistice Lines of 1949, which are part of the West Bank boundary, represent
nothing but the position of the contending armies when the final cease-fire
was achieved in the War of Independence. And the Armistice Agreements
specifically provide, except in the case of Lebanon, that the demarcation
lines can be changed by agreement when the parties move from armistice to
peace.
Resolution 242 is based on that provision of the Armistice Agreements and
states certain criteria that would justify changes in the demarcation lines
when the parties make peace.

Many believe that the Palestine Mandate was somehow terminated in
1947, when the British government resigned as the mandatory power. This is
incorrect. A trust never terminates when a trustee dies, resigns, embezzles
the trust property, or is dismissed. The authority responsible for the trust
appoints a new trustee, or otherwise arranges for the fulfillment of its
purpose. Thus in the case of the Mandate for German South West Africa, the
International Court of justice found
the South African government to be derelict in its duties as the mandatory
power, and it was deemed to have resigned. Decades of struggle and diplomacy
then resulted in the creation of the new state of Namibia, which has just
come into being. In Palestine the British Mandate ceased to be operative as
to the territories of Israel and Jordan when those states were created and
recognized by the international community. But its rules apply still to the
West Bank and the Gaza Strip, which have not yet been allocated either to
Israel or to Jordan or become an independent
state. jordan attempted to annex the West Bank in 1951, but that annexation
was never generally recognized, even by the Arab states, and now Jordan has
abandoned all its claims to the territory.

The State Department has never denied that under the Mandate "the Jewish
people" have the right to settle in the area. Instead, it said that Jewish
settlements in
the West Bank violate Article 49 of the Fourth Geneva Convention of 1949,
which deals with the protection of civilians in wartime. Where the territory
of one contracting party is occupied by another contracting party, the
Convention prohibits many of the inhumane practices of the Nazis and the
Soviets before and during the Second World War-the mass transfer of people
into or out of occupied territories for purposes of extermination, slave
labor, or colonization, for example.

Article 49 provides that the occupying power "shall not deport or
transfer part of its own civilian population into the territory it
occupies."
But the Jewish settlers in the West Bank are volunteers. They have not been
"deported" or "transferred" by the
government of Israel, and their movement involves none of the atrocious
purposes or harmful effects on the existing population the Geneva Convention
was designed to prevent. Furthermore, the Convention applies only to acts by
one signatory "carried out on the territory of another." The West Bank is
not
the territory of a signatory power, but an unallocated part of the British
Mandate. It is hard, therefore, to see how even the most literal-minded
reading of the Convention could make it apply to Jewish settlement in
territories of the British Mandate west of the jordan River. Even if the
Convention could be construed to prevent settlements during the period of
occupation, however, it could do no more than suspend, not terminate, the
rights conferred by the Mandate. Those rights can be ended only by the
establishment and recognition of a new state or the incorporation of the
territories into an old one.

As claimants to the territory, the Israelis have denied that they are
required to comply with the Geneva Convention but announced that they will
do
so as a matter of grace. The Israeli courts apply the Convention routinely,
sometimes deciding against the Israeli government. Assuming for the moment
the general applicability of the Convention, it could well be considered a
violation if the Israelis deported convicts to the area or encouraged the
settlemen of people who had no right to live there (Americans, for example).
But how can the Convention be deemed to apply to Jews
who have a right to settle in the territories under international law: a
legal right assured by treaty and specifically protected by Article 80 of
the
U.N. Charter, which
provides that nothing in the Charter shall be construed "to alter in any
manner" rights conferred by existing international instruments" like the
Mandate? The Jewish right of settlement in the area is equivalent in every
way to the right of the existing Palestinian population to live there.

Another principle of international law may affect the problem of the
Jewish settlements. Under international law, an occupying power is supposed
to apply the
prevailing law of the occupied territory at the municipal level unless it
interferes with the necessities of security or administration or is
"repugnant to elementary conceptions of justice." From 1949 to 1967, when
Jordan was the military occupant of the West Bank, it applied its own laws
to
prevent any Jews from living in the
territory. To suggest that Israel as occupant is required to enforce such
Jordanian laws-a necessary implication of applying the Convention-is simply
absurd. When the Allies occupied Germany after the Second World War, the
abrogation of the Nuremberg Laws was among their first acts.

The general expectation of international law is that military
occupations
last a short time, and are succeeded by a state of peace established by
treaty or otherwise. In the case of the West Bank, the territory was
occupied
by Jordan between 1949 and 1967, and has been occupied by Israel since 1967.
Security Council Resolutions 242 and 338 rule that the Arab states and
Israel
must
make peace, and that when "a just and lasting peace" is reached in the
Middle
East, Israel should withdraw from some but not all of the territory it
occupied in the
course of the 1967 war. The Resolutions leave it to the parties to agree on
the terms of peace.

The controversy about Jewish settlements in the West Bank is not,
therefore, about legal rights but about the political will to override legal
rights. Is the United
States prepared to use all its influence in Israel to award the whole of the
West Bank to Jordan or to a new Arab state, and force Israel back to its
1967
borders? Throughout Israel's occupation, the Arab countries, helped by the
United States, have pushed to keep Jews out of the territories, so that at a
convenient moment, or in a peace negotiation, the claim that the West Bank
is
"Arab" territory could be made more plausible. Some in Israel favor the
settlements for the obverse reason: to reinforce Israel's claim for the
fulfillment of the Mandate and of Resolution 242 in a
peace treaty that would at least divide the territory. For the international
community, the issue is much deeper and more difficult: whether the purposes
of the Mandate can be considered satisfied if the Jews finally receive only
the parts of Palestine behind the Armistice Lines-less than 17.5 percent of
the land promised them
after the First World War. The extraordinary recent changes in the
international environment have brought with them new diplomatic
opportunities
for the United States and its allies, not least in the Middle East. Soviet
military aid apparently is no longer available to the Arabs for the purpose
of making another war against Israel. The intifada has failed, and the
Arabs'
bargaining position is weakening. It now may be possible to take long steps
toward peace. But to do so, the participants
in the Middle East negotiations-the United States, Israel, Egypt, and the
PLO-will have to look beyond the territories.

The goal of Yitzhak Shamir's election proposal is an interim regime of
Arab autonomy in part of the West Bank and the Gaza Strip in accordance with
the Camp David Accords; the goal of the PLO is to establish a Palestinian
Arab state in the whole of the territories. It is hard to be sanguine about
the possibility of reconciling those positions through negotiations.
Establishing a cooperative relationship between Israel and the Arabs who
live
in the occupied territories is a crucial part of the Palestine problem, but
it is not the whole of it, and surely not an end in itself.
The last thing Israel wants is an Arab Bantustan. If the status of the
occupied territories is viewed in isolation, negotiation will be
excruciatingly difficult, and every
item on the agenda will be a tense and suspicious haggle on both sides.

The prospects for peace would be less forbidding if the question were
approached as one element in a plan for achieving a larger goal: a
confederation involving
at least Israel, Jordan, and the occupied territories. Membership could
perhaps be open to poor Lebanon as well, or parts of it. Even Syria, behind
its ferocious words, may be preparing to move toward peace. Syria and Israel
have congruent interest in Lebanon and elsewhere, and neither country wants
a
state dominated by the PLO as a neighbor.

The idea of a Palestinian confederation has been the recommendation of
every serious study of the Palestine problem for more than fifty years. It
was the essence of the partition proposals of the Peel Commission in 1936,
and of the General Assembly's 1947 partition plan, at least for Israel and
the West Bank. With different boundaries, it was also the basic idea of
Israel's 1967 peace offer, which will always correspond to Israeli public
opinion: Palestine divided into a jewish and an Arab state, united in a
common market, with special arrangements for Jerusalem and as much political
cooperation as the traffic will bear. Before the intifada started, it was
the
notion behind the de facto Israel/Jordanian condominium for the West Bank,
which was both effective and practical.

After the past year's events in Eastern Europe and the Soviet Union, who
can say that progress in the Middle East is impossible?