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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 settlement 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.
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