Israel: The Settlements Are Not Illegal

According to international law, the Jews are the indigenous people of the lands referred to as Judea, Samaria, Palestine, Israel and the Holy Land. Jewish rights of “settlement” in the so-called “West Bank” therefore exist; it cannot seriously be contended, as the EU, France, Britain, Russia, China and other states do, that Jewish communities in the West Bank are illegal and that annexation is contrary to international law. Pictured: The Israeli settlement of Maale Adumim, at the edge of the Judean Desert. (Photo by Hazem Bader/AFP via Getty Images)

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on September 13, 2007, by a majority of 144 states in favor, 4 votes against, and 11 abstentions, recognized that indigenous people (also known as first people, aboriginal people or native people) have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (Art. 26.1) and that the exercise of these rights shall be free from discrimination of any kind (Art. 2).

With domestic state practice, the legal status and rights of indigenous peoples has evolved and crystallized into international customary law.[1] For example, the Inter-American Commission on Human Rights declared that “there is an international customary law norm which affirms the rights of indigenous peoples to their traditional lands”. The African Court on Human and Peoples’ Rights affirmed that land rights of indigenous people are protected and that these rights are “general principles of law”.

Among others, Belgium, Britain, France, Germany, Israel and Luxembourg voted in favor of the Declaration. Since 2007, Australia, Canada, New Zealand and the United States, who voted against, formally endorsed the Declaration in 2010. In their relations with Israel, these states cannot claim that the Declaration does not apply to Israeli Jews, since such position would amount to blatant racial discrimination.[2]

According to international law, the Jews are the indigenous people of the lands referred to as Judea, Samaria, Palestine, Israel and the Holy Land, and therefore fulfill the criteria required by international law. The Jews are the ethnic group that was the original settler of Judea and Samaria 3,500 years ago, when the land was bestowed upon the Jews by the Almighty. Leaders of this world, who chose to make abstraction of history, misleadingly refer to Judea and Samaria as the “West Bank” of the Jordan River (which includes Israel) or the “Occupied Palestinian Territories”.

After the Balfour Declaration of 1917, the Treaty of Lausanne (1923), British Mandate for Palestine (1922), San Remo Resolution (1920), and Treaty of Sevres (1920) created international law, and recognized and re-established the historical indigenous rights of the Jews to their land. The signatories of these treaties and the Mandate (Britain, France, Turkey, Japan, Italy, etc.), are bound by them.

With the Mandate for Palestine, accorded to Great Britain in August 1922, the League of Nations recognized “the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country”. The Jewish people’s right to settle in the Land of Palestine, their historic homeland and to establish their state there, is thus a legal right anchored in international law.

UNDRIP reaffirms the right of the Jewish people as the indigenous people, and “especially their rights to their lands, territories and resources.”

Recent UN General Assembly Resolutions stating that the settlement of Jews in Judea Samaria is contrary to international law are no more than recommendations and have never led to amendments of existing binding treaties. UN Security Council Resolutions, stating that Jewish communities in Judea and Samaria are illegal, are not binding. Only resolutions taken under Chapter VII of the UN Charter are binding on all UN member states. For example, Security Council Resolution 2334 was adopted on December 23, 2016 by a 14–0 vote. Four permanent members of the Security Council — China, France, Russia and the United Kingdom — voted in favor; the US abstained. This resolution was not adopted under Chapter VII of the Charter. It is not binding. That resolution states that Israel’s settlement activity constitutes a “flagrant violation” of international law. It has “no legal validity”. This resolution violates the UNDRIP, the British Mandate and the other treaties.

The right of the Jewish people to “settle” in the so-called West Bank, and Israel’s right to annex parts of Judea and Samaria (part of Palestine) derive from the Mandate (Levy Report of July 9, 2012). Pursuant to the Mandate, the right to annex some parts of Judea and Samaria is a direct consequence of the right of the Jews to settle in all Palestine i.e. the territory of the 1936 Mandate.

Article 80 of the United Nations Charter (1945) recognized the validity of existing rights that states and peoples acquired under the various mandates, including the British Mandate for Palestine (1922), and the rights of Jews to settle in the land (Judea and Samaria) by virtue of these instruments. (Pr. E. Rostow). These rights cannot be altered by the UN.
“Except as may be agreed upon in individual trusteeship agreements…nothing in this Charter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.” (Article 80, paragraph 1, UN Charter)
In a series of decisions and advisory opinions on Namibia, the International Court of Justice (ICJ) ruled that a League Mandate is a binding international instrument like a treaty, which continues as a fiduciary obligation of the international community until its terms are fulfilled. In the case of Namibia, the Court upheld the Security Council’s ruling that South Africa had abandoned its rights as Mandatory Power by breaching some of its fundamental duties. The Mandate survived as a trust, based on legal principles confirmed by Article 80 of the Charter.

Like the South West African Mandate, the Palestine Mandate survived the termination of the British administration as a trust under Article 80 of the UN Charter (Pr. E Rostow).

Jewish rights of “settlement” in the so-called “West Bank” therefore exist; it cannot seriously be contended, as the EU, France, Britain, Russia, China and other states do, that Jewish communities in the West Bank are illegal and that annexation is contrary to international law. This position is political, not legal. Despite UN resolutions to the contrary, the establishment of Israeli civilian settlements in the West Bank is not inconsistent with international law.

Israel, the Jewish State, as a member of the international community has the right but also the duty to fulfill the Mandate that most nations disregarded, fearing terrorism and the Muslim world, and animated by 2,000 years of religious hatred and anti-Semitism.

One hundred and three years passed since the Balfour Declaration, 73 years since the 1947 UNGA Resolution 181 was rejected by the Arab states, 52 years since the 1967 Six Day War, and 27 years since the Oslo Accord. The Oslo Accords of 1993 and 1995 were signed but did not lead to peace. The Palestinian Authority (PA) does not want peace; they refused Israel’s offers, made in 2000 and in 2008, for a Palestinian state and to live in peace.

The participation of the Palestinian Authority security apparatus in the murders of Jews since 1993 is proof, as well as the pay-to-slay program for prisoners implicated in terror-related offenses. PA President Mahmoud Abbas’ threats that the Palestinians will provoke an “uprising” after the Bahrain Conference and after an annexation should be taken seriously. Abbas is definitively not interested in peace.

Israel has the duty to draw the logical consequences of this behavior and annex all or some of the territories in Area C, to secure the existence of its population within secure borders, and to be able to receive those of the millions Jews still living in exile who wish to settle in Israel.
Michel Calvo was born in Tunis, Tunisia. An expert in international law, he was a member of the International Court of Arbitration representing Israel. He is the author of The Middle East and World War III: Why No Peace? with a preface by Col. Richard Kemp, CBE.

[1] S. Wiessner, ‘The United Nations Declaration on the Rights of Indigenous Peoples’ in A Constantines and N. Zaikos (eds.), The Diversity of In­ternational Law (Brill, Leiden, 2009) at 343–362.

[2] France, which voted for the Declaration, pushed for a tough EU response to any Israeli annexation move. This is no surprise since on June 2015, the Committee on the Elimination of Racial Discrimination remains concerned by the failure of France to fully recognize the existence of indigenous peoples in its overseas territorial collectivities.