Contrary to Baseless Assumptions, Israel's Settlement Activity Is Indeed Legal

Renowned jurists, political scientists and Israeli governments have rejected the 'illegality' argument regarding settlement in Judea and Samaria.

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Netiv Ha’avot.
Netiv Ha’avot.Credit: Alex Levac

Nearly two weeks ago, the High Court of Justice ruled that 17 homes in the outpost of Netiv Ha’avot, in the heart of the Gush Etzion bloc, must be demolished because they were built without the required construction permits, in the absence of completed planning procedures and before the land’s status was finalized. It was a difficult decision for the site’s residents. Homes built with their hard-earned money need to be demolished.

From the standpoint of left-wing organizations, it is cause for celebration. As they would have it, it is proof that the entire settlement enterprise is not legitimate. The claim that the settlements are illegal has again raised its head.

Apparently, proponents of this argument have not studied the Baraita of Rabbi Ishmael, which sets out the 13 principles required for the study of the Torah. Rabbi Ishmael said in part: “Any generalization that comes before an elucidation that comes before another generalization needs to be judged based on the elucidation.”

The homes in Netiv Ha’avot were settled as an inseparable part of Gush Etzion, whose status is assured and resolved. The Supreme Court is ruling that these homes are not legal, but this same ruling also confirms the legal status of hundreds of thousands of other homes in Judea and Samaria. Weighty legal arguments support the right of Jews to build in Judea and Samaria and East Jerusalem, but there are those who continue to consider the Jewish communities living in these areas as “not legal” and “not legitimate.”

But what laws are the residents running afoul of, and who has decided that Israel is guilty of violating them?

The law applying to this matter is set out in the Fourth Geneva Convention, an important source of international and humanitarian legislation binding on the countries that have signed onto it. The convention was written after World War II, in the shadow of the Holocaust, with the aim of protecting innocent individuals during wartime. The only argument on which jurists and politicians can base a claim that the settlements are not legal is the section of the convention that states that an occupying country cannot transfer its population into the occupied territory. Based on this, opponents of Jewish settlement in Judea and Samaria claim that the transfer of Israeli citizens to settlements in occupied territory is a violation of international law.

Such an argument is entirely baseless and meant to pose a challenge to the settlement enterprise in Judea and Samaria. The prohibition against transferring a population into occupied territory was legislated during World War II to prevent efforts to forcibly transfer a population of the occupier into territory that had been occupied.

That is not the situation in Judea and Samaria. The Jewish population moved there of its own free will and has been fighting to expand construction in the area. It’s important to remember that Israel also has legal, moral and historical rights in this territory.

This doesn’t involve occupation by a foreign country of territory that it has no connection with. Beyond history and the well-known rights from the Bible, the territories of Judea and Samaria were never under Jordanian sovereignty. Other than Britain and Pakistan, no country anywhere in the world recognized Jordanian sovereignty there, and this includes the Arab states.

In addition, the League of Nations designated the territory for the building of a home for the Jewish People. Israel, in a war of self-defense, captured territory that wasn’t subject to any other country and which from the beginning had been designated for the building of the Jewish state. The legal status of Palestine, which was supposed to be the national home of the Jews, was set by the League of Nations (1920), by the San Remo Agreement (1920) and in the British Mandate over Palestine and approved by the United States Congress. In the absence of other laws, these laws remain in effect to this day. The United Nations and the Red Cross take exception to this, but they don’t say whom the territories belong to.

Renowned jurists, political scientists and Israeli governments have rejected the “illegality” argument regarding settlement in Judea and Samaria and the claim that it involves “occupation,” this due to the fact that the conditions of the Fourth Geneva Convention do not fit this case. Contrary to all accepted legal norms, the Red Cross refuses to open its archives and explain its position.

It would be appropriate to hold a public discussion of the subject, but the purported argument that the settlements are not legal is a gross lie, in violation of the legal and moral truth. Even our political adversaries know this truth and knowingly ignore it.

In the geopolitical situation that has been created in the Middle East, in which Arab states are breaking apart and other states are cooperating with Israel, the government can have the courage to make its stance clear to avoid additional cases in which homes are demolished on the irrelevant claim of “illegality.” It would be proper to take strategic steps that will decide the legal status of Judea and Samaria, as the government of Menachem Begin courageously did when it applied Israeli sovereignty to the Golan Heights.

The writer is a lawyer and head of the Efrat Local Council.

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