The following column by former Israeli Ambassador to Canada Alan Baker highlights basic facts regarding the legal status of Judea and Samaria that, although critical, are not widely known.
Israel is Not an “Occupier”
International law defines “occupation” as one power occupying the lands of a foreign sovereign. In Israel’s case, Israel is not occupying any foreign sovereign’s land; Israel entered the area known as the West Bank in 1967 and took over the authority to administer the land from Jordan, which was never considered to be a sovereign in the area.
In actual fact, Israel and the Jewish people have got claims to the area that go far back into history. Anybody who reads the Bible can appreciate the fact that there is a very solid historic legal basis to the claim of Israel with respect to the territories and therefore Israel considers the territories not to be occupied, not to be Palestinian, but as in dispute.
We appreciate that the Palestinians also have claims with respect to the territory. Israel considers that its claims are far better based and better documented than any other claims, but Israel is committed to conduct negotiations with the Palestinians in order to find a permanent settlement to the issue.
The Jordanians, who occupied the territory after the 1948 war, annexed it, but this annexation was never really recognized or acknowledged by the international community. At a later stage the king of Jordan voluntarily gave up any Jordanian sovereignty or claim to the territories to the Palestinian people. So the Jordanians came and went, and the issue remains an issue between the Israelis and the Palestinians.
“Palestinian Territories” is Not a Legal Term
The international community’s constant referral to the “Palestinian territories” is a complete fallacy and has absolutely no legal or political basis. There has never been a Palestinian state, as such, and therefore the territories never belonged to any Palestinian entity. There’s no international agreement, there’s no contract, there’s no treaty, and there’s no binding international resolution that determines that the territories belong to the Palestinians.
In actual fact, even the Palestinians themselves, in the Oslo agreement that they signed with Israel, acknowledge the fact that the ultimate permanent status of the territory is to be determined by negotiations. Therefore, even the Palestinians accept the fact that this is not Palestinian territory, its disputed territory whose status is yet to be settled.
If the local population owns land, then the administrative power isn’t allowed to take the land or use it. But if the land is not private, the administering power can use the land and enjoy the fruits of the land until sovereignty has been finally determined. So Israel justifiably can use land which is not private land, which is public land, for establishing settlements as long as these settlements don’t take away the private rights of the local population. Therefore, in our opinion, the settlements are not illegitimate.
The Settlements are Not Illegitimate
There’s one other point. The issue of settlements is a negotiating issue. The Palestinians have agreed with the Israelis that the issue of settlements is one of the issues on the permanent status negotiating table. Therefore, anybody who comes along and claims that Israel’s settlements are illegitimate – whether it’s the EU, whether it’s individual governments, whether it is the secretary of state of the United States, who said so specifically, or the spokesman of the State Department – they’re prejudging a negotiating issue, which is clearly incompatible with any negotiating principle.
These are issues that have to be negotiated between Israel and the Palestinians. Therefore, nobody can claim that the settlements are illegitimate or that they’re illegal, as such. They have to be negotiated between the parties.
There’s No Such Thing as 1967 Borders
There’s no such thing as 1967 borders. A border is a line between two sovereign entities. In 1967, there was a ceasefire line that had existed since the 1948-1949 war between the Arab states and Israel and after Israel declared its independence. The Jordanians insisted on inserting in the Armistice Agreement of 1949 a provision which says that the armistice demarcation line is not the final border. Final borders can only be determined in peace negotiations between the parties. So “1967 borders” is a non-existent term and anybody using this term – again, including the U.S. administration and the EU – are simply being misled.
Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.
This article was originally published on the Jerusalem Center for Public Affairs website.
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