Jewish Settlements in Judea & Samaria, a.k.a. the "West Bank": A Legal Defense

By 

Jay Sekulow and Skip Ash

|
May 19

7 min read

Israel

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Anyone who follows what’s going on in Israel knows that the issue of Jewish settlements in the so-called “West Bank” (territory historically and more accurately known as Judea and Samaria and which constituted part of the historical Land of Israel) is an issue that continuously riles the antisemitic, anti-Israel crowd around the globe.

Mrs. Fatou Bensouda, the former Prosecutor of the International Criminal Court (ICC) in The Hague, even went so far as to claim that establishing such settlements constitutes a war crime against the Palestinians. Mrs. Bensouda claimed that the Israeli settlements were being built on land that belonged to the “State” of Palestine. Regrettably, an ICC pre-trial chamber majority agreed, despite Mrs. Bensouda’s having conceded in her legal arguments before the chamber: (1) that “Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed” (an interesting comment since recognized borders and sovereignty (i.e., “full control”) are component parts of statehood); (2) that “[t]he Palestinian Authority does not govern Gaza” (an interesting comment since Palestinians claim that the Gaza Strip is a component part of “Palestine”); and (3) that “the question of Palestine’s Statehood under international law does not appear to have been definitively resolved” (an interesting comment since she is admitting that, for her, unresolved statehood is not an impediment to treating Palestine as actually possessing statehood). Logically, not knowing definitively that Palestine is a “State” and what its recognized borders are makes it impossible to determine whether any Jewish settlement is on “Palestinian” territory. But, why cloud the issue with inconvenient facts.

Such faulty reasoning is unfortunately a daily fact of life for Israel, as it is constantly being attacked for alleged offenses it has not committed. That is part of a global, antisemitic strategy to delegitimize the only Jewish State in the community of nations. Israel is accused not only of committing war crimes but also crimes against humanity and being an apartheid state. Such claims are nonsense, but they have to be answered.

States, peoples, and organizations which value justice, the rule of law, and the truth cannot sit idly by when such lies are spewed forth on an almost daily basis at the ICC, at the U.N., and its agencies, by supposed human rights NGOs, and in the press. We at the ACLJ are compelled to respond to correct the record and defend Israel, the only liberal democratic State in the entire Middle East.

Although Israel is not a perfect State, it is lightyears from the evil State that its detractors repeatedly and falsely claim it to be. It is a functioning democratic State which treats all of its citizens equally under the law and protects fundamental human rights—even those of its enemies. It is ironic, sad, and transparently obvious to any objective observer that most States routinely condemning Israel—like Cuba, Iran, Saudi Arabia, Somalia, Syria, Turkey, and Venezuela, to name but a few—have far worse human rights records than Israel’s. This exposes the hypocrisy of their condemnations and demands that those who value truth expose their lies and stand up for Israel.

We at the ACLJ support democratic states like Israel which seek to uphold and follow the rule of law both internationally and domestically. Accordingly, we have just published a lengthy and detailed legal analysis, essentially a scholarly law review article, which points out that Israel has acted in accordance with governing international law vis-à-vis the establishment of settlements in Judea and Samaria (i.e., the so-called “West Bank”).

We have cited three different legal theories, each of which individually and independently establishes the legality of Jewish settlements in Judea and Samaria/the West Bank.

The first theory is grounded on the principle uti possidetis juris, the principle in customary international law that governs what happens to States that come into being from a prior position of non-independence, whether as a former colony, a former mandate, or as part of a former state that has broken apart (like the various independent States that came into being when the former Soviet Union and the former Yugoslavia broke up). Uti possidetis juris establishes that, when a State comes into existence, it becomes sovereign over all the territory controlled by the former ruling power within the administrative borders that existed when the former rulers departed. Only Israel came into existence as a State upon Britain’s departure in 1948. Hence, in accordance with uti possidetis juris, Israel gained sovereignty over all the territory then evacuated by the British (which also included the Gaza Strip and the so-called West Bank). Hence, pursuant to uti possidetis juris, the territory in question belongs to Israel, and it is Israel that determines the lawfulness of settlements. Notably, the Palestinians did not even declare independence of an alleged “State of Palestine” until 1988, a full 40 years after Israel came into existence; and they did so from exile, having never before governed or controlled a single square inch of territory they claimed belonged to their “State.”

The second theory is grounded on the principle enunciated by the International Court of Justice in its 1971 Namibia Advisory Opinion, when the Court declared that a League of Nations Mandate “is a binding international instrument like a Treaty, which continues as a fiduciary obligation of the international community until its terms are fulfilled.” The Mandate for Palestine was created in the early 1920s to establish a national home for the Jewish people in the historical Land of Israel on territory then called “Palestine.” At Israel’s birth in 1948 when the British departed, surrounding Arab States attacked the nascent State of Israel and illegally occupied both the Gaza Strip and Judea and Samaria/the West Bank, thereby precluding the fulfillment of the terms of the Mandate in those two areas. Israel won those territories back in 1967. Accordingly, until the Mandate’s terms are fulfilled, they continue to apply in those two geographic areas. Notably, Article 6 of the Mandate for Palestine sanctions and encourages Jewish settlement throughout the territory of the Mandate (which included Judea and Samaria/the West Bank). Accordingly, until the terms of the Mandate are recognized as fulfilled, Jews are allowed to establish settlements in Judea and Samaria/the West Bank.

The third theory is grounded on the fact that, because there is no prior sovereign to whom Judea and Samaria/the West Bank could be returned (The Ottoman Turkish Empire was the last lawful sovereign, and the Turks renounced their sovereignty in the 1920s) and because both Jews and Arabs have laid claim to the same territory, ownership of the territory is, at best, disputed. Under this theory, both Jews and Arabs have colorable claims to the land. Until such disputes are resolved via the means already agreed to by both sides—to wit, via good faith negotiations—there is no way to determine whether any Jewish settlement is improperly on Palestinian soil, because there is no way to determine—absent an agreement between the claimants—to whom a particular piece of land belongs. Until negotiations are completed, Jews have as much of a claim to the land in question as do the Arabs. Accordingly, there is no principled or existing means to determine if a Jewish settlement is unlawful.

Many articles have been written making the case to isolate and condemn Israel, but a closer look at such articles indicates that they hold Israel to a different standard than they hold themselves and all other countries, which is dishonest and hypocritical. Israel is not a perfect State, but it is a State that stands head and shoulders above the vast majority of its accusers in its dedication to the rule of law and to human rights.

Integrity demands that people of character defend Israel from unjust attacks. The ACLJ has taken up that challenge and plans to assist Israel in any way we can. We ask you to join us in defending Israel from unjust criticism and attacks.