Jerusalem Center for Security and Foreign Affairs (JCFA)

Executive Summary

This chapter analyzes from an international law perspective the legality of Jewish settlements in east Jerusalem, Judea and Samaria, and the Gaza Strip. Since the Six-Day War, Israel has extended its law, jurisdiction, and administration over eastern Jerusalem but not to Judea, Samaria, and Gaza. In the interim period, which lasted since 1967, Jewish settlements were established on that land.

Many in the international community contend that the Palestinian Arabs are entitled to an independent state in all of these areas, while Jewish settlement there is forbidden under international law. In their view, since Israel took over these territories in 1967, it has held them under belligerent occupation. The demarcation lines stipulated in the Armistice Agreements between Israel and Jordan, on the one hand, and between Israel and Egypt, on the other (the “Green Line”), is, in their view, an international border beyond which Jews are not allowed to settle.

The legality of the Jewish settlements in Jerusalem, Judea and Samaria, and Gaza derives from the Jewish people’s historical, indigenous, and legal rights to settle in those areas, validated in international documents. Denying Jews their right to live in the Old City of Jerusalem and Judea and Samaria means denying their ties to their biblical and historical homeland, precisely those ties that have been recognized in these documents.

The claim that the Palestinian Arabs are entitled to an independent state in all the territories, while Jewish settlement is forbidden, is unfounded in international law. The Palestinians themselves do not consider that the recognition of a right to self-determination in these territories will conclude their national claims since those extend “from the [Jordan] River to the [Mediterranean] Sea.”

Following Israel’s War of Independence in 1948, there was an exchange of approximately 600,000 people from each side. Whereas Israel absorbed the Jewish refugees, the Arab states, rather than absorbing the Arab refugees, invented a new “Palestinian people” that had never before ruled the land; there is no “Palestinian” language and no specific “Palestinian” culture or history.

The Oslo Agreements were drafted to enhance “a just, lasting, and comprehensive peace.” Yet, since they came into effect, the Middle East has witnessed not peace but violence and terror. The establishment of the Palestinian Authority and the subsequent takeover of Gaza by Hamas, as well as the popular support Hamas enjoys in Judea and Samaria, should serve as a “guide to the bewildered” of the grave risks posed by such an Arab state, which may eventually lead to the destruction of the Jewish state.

Introduction

This chapter analyzes, from an international law perspective, the legality of Jewish settlements in east Jerusalem (including the Old City of Jerusalem), Judea and Samaria (the West Bank), and the Gaza Strip.

The State of Israel’s official position is that since the Six-Day War, Israel extended its law, jurisdiction, and administration over eastern Jerusalem but chose not to do so concerning Judea and Samaria and the Gaza Strip. However, it is widely acknowledged that, in light of its historical and legal rights, Israel nevertheless has a prior claim to sovereignty over all these territories. In the interim period, which lasted since 1967, establishing Jewish settlements on that land was fully in accordance with international law.

The opposing position, advanced by numerous members of the international community, contends that the Palestinian Arabs are entitled to an independent state in all of these areas, while Jewish settlement there and in east Jerusalem, including the Old City, is forbidden under international law. In their view, since Israel took over these territories in 1967, it has held them under belligerent occupation. The demarcation line stipulated in the Armistice Agreements between Israel and Jordan, on the one hand, and between Israel and Egypt, on the other (the “Green Line”), is, to all intents and purposes, an international border, beyond which Jews are not allowed to settle.

The Establishment of the State of Israel, the Jewish State

“If I forget thee, O Jerusalem, may my right hand forget its cunning,” declared Charles Malik, the Lebanese delegate to the United Nations, immediately after the UN General Assembly adopted its Partition Plan on November 29, 1947, quoting King David’s Psalms 137. Abba Eban, the Israeli delegate, retorted, “If you continue saying this for 2,000 years, we shall start believing it.”¹ The Jewish people can trace their roots in Judea back to the days of the patriarch Abraham. All generations of the Jewish people have maintained their ties to their Promised Land, from which they had been expelled by force repeatedly.

During two millennia of Diaspora, Jews retained a clear, direct link to their heritage thanks to a unique language (Hebrew), religion (Judaism), and culture (practices common to Jews all over the world). Jewish settlement in the Land of Israel has not ceased for even a single generation after sovereignty had been lost.²

The Jewish people are the only people who considered the Land of Israel their homeland throughout history. After the Jews lost sovereignty in 70 CE, the country was ruled by the Romans, Byzantines, Persians, Arabs, Crusaders, Mamluks, and Ottomans. The desolation and destruction of the land were recorded in numerous sources. Under the first period of Islamic rule (634–1096 CE), most agricultural settlements were gradually abandoned.³ Ineffective irrigation and drainage methods turned fertile land into swampland. On a visit to the Holy Land in 1867, Mark Twain described the Jezreel Valley as having “not a solitary village throughout its whole extent—not for thirty miles in either direction. There are two or three clusters of Bedouin tents, but not a single permanent habitation. One may ride ten miles hereabouts and not see ten human beings.”⁴ Twain ends by quoting the biblical curse from Leviticus 26:32–33: “I myself will lay waste the land so that your enemies who live there will be appalled. I will scatter you among the nations and I will draw out a sword and pursue you. Your land will be desolate and your cities waste.”

Jerusalem fared no better. When Muslims controlled the city, they never made it their capital.⁵

Before the establishment of the State of Israel, there was no “Palestinian” Arab state west of the Jordan River. The name “Palestine” does not have Arab roots. It derives from the name the Romans gave the land after crushing the Jewish revolt. Attempting to delete from history and memory any identification between the province of Iudæa and the Jewish people, they renamed the province Syria Palæstina, which eventually became Palestine, so-called after the Philistines who had resided in the coastal plain in the biblical era⁶ and had since vanished from the face of the earth, no longer having any ties to the land nor chance of returning there.

The change in the state of the land came with the large-scale waves of Jewish immigration since the 19^th century, throughout which Jews were the most significant minority in Jerusalem. After a visit to Palestine in March 1921, Winston Churchill was deeply impressed with the progress made by the Jewish settlements established there by Zionist immigrants. At a parliamentary debate following that visit, Churchill told the Parliament members how the Zionist immigrants had turned “the most inhospitable soil, surrounded on every side by barrenness and the most miserable form of cultivation … into a fertile and thriving country estate, where the scanty soil gave place to good crops and good cultivation, and then to vineyards and finally to the most beautiful, luxurious orange groves, all created in 20 or 30 years by the exertions of the Jewish community who live there.”⁷ Churchill also noted that the Jewish enterprises served as a magnet for Arabs searching for employment.

It was in appreciation of the special connection between the Jewish people and their biblical homeland that the international community came to recognize Israel as a state in which this indigenous people had the right to regain their sovereignty.⁸ This recognition was enhanced by the further acknowledgment that Jews in the Diaspora were in constant danger of persecution and annihilation, their precarious status culminating in the Holocaust. The right of every Jew to immigrate (“return”) to the Land of Israel is the cornerstone of the Jewish state, whose raison d’être is to provide a safe haven for Jews worldwide who wish to pursue a Jewish lifestyle openly and undisturbed, in a state whose official day of rest is the Sabbath, where Jewish festivals are official holidays, the language is Hebrew, and where Jews are free from antisemitic attacks or at least are capable of actively defending themselves.

The Land of Israel in International Law

The Jewish People’s Rights: The League of Nations and the UN Charter

In 1920, the San Remo Conference of the Allied Powers, when allocating the lands of the former Ottoman Empire, assigned to Great Britain a Mandate to establish the Jewish national home on a territory covering Israel, Jordan, and part of the Golan Heights.⁹ The preamble to the Mandate specifies that “recognition has thereby been given to the historical connection of the Jewish people with Palestine, and to the grounds for reconstituting their National Home in that country.”

The Mandate made Britain responsible for placing the country under such political, administrative, and economic conditions as would secure the establishment of the Jewish national home in Palestine. It required Britain to facilitate Jewish immigration to Palestine and encourage close settlement by Jews on the land, including state lands and waste lands not required for public purpose, and to introduce a land system that would promote the close settlement and intensive cultivation of the land. Britain was made responsible for enacting a nationality law that would enable Jews who took up permanent residence in Palestine to acquire Palestinian citizenship.

Shortly before the Mandate’s ratification, Article 25 was added. It empowered Britain, with the Council of the League of Nations’ consent, to postpone or withhold the application of the Mandate provisions to the territories between the Jordan River and the eastern boundary of Palestine.

The Palestine Mandate does not mention Arab national or political rights in Palestine. It provides that “nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities.” The reason is clear: the purpose of the Mandate was to reconstitute the political ties of the Jewish people to their biblical homeland.

Out of the three classes of Mandates established by Article 22 of the Covenant of the League of Nations, the Palestine Mandate was considered a “Class A” Mandate, albeit with unique (sui generis) characteristics since it was designed to establish a state for the Jewish people, most of whom were not resident in Palestine at that time, rather than independent statehood of the local population as was the case with other mandates.¹⁰ At the San Francisco Conference in 1945, at which the United Nations Charter was drafted and adopted, the rights under the Mandates were set forth in Article 80, which addressed the need to maintain the rights “of any states or any peoples or the term of existing international instruments to which Members of the United Nations may respectively be parties.”¹¹ The Arab delegations made several unsuccessful attempts to prevent the use of the word “peoples” in Article 80. Those proposals were rejected, and the Arab delegates did not manage to prevent the protection of the rights granted in the Palestine Mandate in its entirety, including its provisions pertaining to the rights of the Jewish people in Eretz Israel.

Arab pressure and riots in Palestine (supported by British officials favoring the establishment of a homogeneous Arab empire affiliated with Britain in the whole of the Middle East)¹² resulted in Churchill’s White Paper of 1922. While reiterating the right of the Jewish people to a national home in Palestine, it permanently detached the area of the Jewish homeland east of the Jordan River (constituting about 76% of the original Mandate territory), regarding which Churchill made a separate agreement with Emir Abdullah of Transjordan granting him control of that area, first as an emirate subject to the British Mandatory and, since March 22, 1946, as the independent Kingdom of Jordan.

During the entire period of the Mandate, Britain, entrusted with ensuring its fulfillment, acted to frustrate its very purpose, wishing thereby to appease the Arab and Muslim world. They did so by restricting Jewish immigration to Palestine, on the one hand, while, on the other hand, permitting the entry of Arabs from neighboring countries who sought to settle in Palestine following its development by the Zionist movement and the ensuing work opportunities; by restricting the sale of land to anyone who was not an Arab resident of Palestine; and by the poor administration of state lands, allowing the Arab population to seize them freely.¹³ The Palestine Citizenship Order-in-Council (1925) contained no provision enabling Jewish immigrants to acquire Palestinian citizenship, as provided in the Palestine Mandate.¹⁴

As explained briefly below,¹⁵ the status in international law of that part of the Jewish homeland remaining after Britain’s severance of the 76% to the east of the Jordan River has remained unchanged.

The Status of Jerusalem, Judea and Samaria, and the Gaza Strip in International Law

In international law, under the uti possidetis (as you possess) principle, the borders of a new state are determined by its borders when it was first established.¹⁶ When Israel was created, its borders were those provided for reconstituting the national home of the indigenous Jewish people in the Land of Israel by the League of Nations, as determined in the British Mandate and confirmed in Article 80 of the UN Charter.¹⁷ No subsequent event has affected this determination.¹⁸

Jerusalem, Judea and Samaria, and the Gaza Strip were all part of the Palestine Mandate territory until 1948. The 1947 UN Assembly Partition Resolution of November 29, 1947 (General Assembly Resolution 181 (II) regarding the partition of Palestine west of the Jordan River into an Arab state and a Jewish state linked by an economic union) was only a recommendation.

During Israel’s War of Independence, Egypt occupied (unlawfully, under public international law) the Gaza Strip, and Jordan occupied (likewise unlawfully) Judea and Samaria (the “West Bank”).¹⁹ Egypt has never claimed title to the Gaza Strip. By contrast, Jordan purported to annex Judea and Samaria in 1950; the annexation was invalid under international law.²⁰

The 1949 Armistice Agreements signed between Israel and its neighbors provided expressly that “[t]he Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary.”²¹ The Armistice Agreements specified that they were intended to facilitate the transition to “permanent peace” and the end of military aggression. No sooner had the ink dried on these agreements than Israel suffered Arab violations thereof.

In 1967, Egypt’s President Gamal Abdel Nasser poured Egyptian Army divisions into the Sinai Peninsula and made public declarations about his imminent intentions to wage war on Israel. At his behest, UN Secretary-General U Thant removed the United Nations Emergency Force (UNEF) from Sinai two days later. In international law, no state is expected to wait until bombs are dropped on its territory. The state that engages in aggressive activities and statements is considered the one to have launched an aggressive attack in violation of international law. After weeks of mobilization, which paralyzed the Israeli economy, Israel was finally forced to act in anticipatory self-defense. On June 5, 1967, it struck the Egyptian Air Force, destroying its aircraft on the ground. Syria and Jordan, totally unprovoked, attacked Israel on that same day, opening fire all along the Armistice Lines. Contingents supporting the Arab attack arrived from Iraq, Algeria, and Kuwait as well. The war ended with Israel’s victory. The Sinai Peninsula, the Golan Heights, east Jerusalem, Judea and Samaria, and the Gaza Strip were under Israeli rule; all of east Jerusalem, Judea and Samaria, and Gaza had been initially designated as the Jewish national home by the Mandate document.

Leading international law scholars opined that Israel was in lawful control of Judea and Samaria and the Gaza Strip, that no other state could show better title than Israel to these territories, and that these territories were not “occupied” in the sense of the Geneva Convention. Those rules are designed to assure the reversion of the former legitimate sovereign, which, in this case, did not exist.²² Israel was, therefore, entitled to declare that it had exercised its sovereign powers over Judea, Samaria, and Gaza.

UN Security Council Resolution 242, passed in the wake of the Six-Day War, was aimed at establishing the guidelines for a “peaceful and accepted settlement” to be agreed upon by the parties. Accordingly, it affirmed that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East that should include the right of all states—including Israel—to “secure and recognized boundaries.” These should guarantee “the territorial inviolability and political independence of every state,” the “termination of all claims or states of belligerency, and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force,” as well as the withdrawal of Israeli armed forces (not necessarily all Israeli armed forces) from territories (not necessarily all territories) occupied in 1967.²³

UN Security Council Resolution 338, which dates to the 1973 Yom Kippur War waged by Egypt and Syria against Israel without any provocation,²⁴ reiterates Resolution 242 (1967) and declares that “immediately and concurrently with the ceasefire, negotiations shall start between the parties … aimed at establishing a just and durable peace in the Middle East.” Both resolutions were adopted under Chapter 6 of the UN Charter, which authorizes the Security Council to make nonbinding recommendations for the peaceful settlement of disputes.

In practice, however, Israel extended its law, jurisdiction, and administration only to east Jerusalem. Regarding the rest of the areas, Israel’s official position was that Israel had the most substantial historical and legal right to them. Since they had not been taken from a legitimate sovereign, the Fourth Geneva Convention did not apply to them. Nonetheless, Israel chose voluntarily to observe and abide by the humanitarian provisions included therein.²⁵

The peace treaties that Israel signed with Egypt in 1979 and with Jordan in 1994 did not determine sovereignty over the West Bank and Gaza.²⁶

On September 13, 1993, the PLO signed a Declaration of Principles²⁷ stating that Resolutions 242 and 338 would provide the basis for negotiations with Israel. Following that declaration, on May 4, 1994, the Agreement on the Gaza Strip and the Jericho Area (“Gaza-Jericho Agreement”) was signed, transferring control of Jericho and the Arab towns in the Gaza Strip to the Palestinian Authority (PA). Overall security in the territory (as distinct from internal security in the areas handed over to the PA) remained under Israeli control, as did control of the Israeli settlements in the Gaza Strip, the roads leading to them from Israeli territory, and the Philadelphi Corridor—a narrow strip of land between the Gaza Strip and Egypt.

The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed on September 28, 1995, five years from the date of signature of the Gaza-Jericho Agreement, provided that the West Bank and the Gaza Strip would be transferred to the PA gradually, including state lands (Art. 16 of Annex III to the Interim Agreement).²⁸ After signing the Interim Agreement, Israel handed over broad powers—in both civil and security matters—to the PA in extensive areas in the West Bank, in which the Arab population was concentrated. In every area transferred to the PA, powers over state lands were likewise transferred for an interim period of five years. However, the Interim Agreement did not apply at all to issues reserved for the negotiations on the permanent status agreement, including Jerusalem and the settlements. Furthermore, both parties agreed that the Interim Agreement would not prejudice the outcome of the talks on the permanent status, and neither party would be deemed to have renounced or waived any of its existing rights, claims, or positions by virtue of having entered into the agreement. The five-year interim period elapsed almost a quarter of a century ago, yet to date, no final agreement has been concluded.

On June 6, 2004, the Israeli government adopted a decision on Israel’s unilateral disengagement plan from the Gaza Strip. The decision was passed by the Knesset in the Disengagement Plan Implementation Law, 5765-2005, and in August–September 2005, Israel withdrew unilaterally from the Gaza Strip, uprooting all Jewish settlements from this area.²⁹ Since the withdrawal was a unilateral act, it could not affect the status of the Gaza Strip.

To sum up, the status of the territories of Jerusalem, Judea and Samaria, and the Gaza Strip has remained unchanged since the establishment of the State of Israel.

The Legality of the Settlements in International Law

The International Law Rules

The areas of Judea and Samaria constitute the biblical homeland of the Jewish people. Since there is no question as to the Jewish people’s widely acknowledged historical and legal roots in these areas, and given the unique sui generis status of these areas, Israel is not considered to be a foreign occupying power, and there is no obstacle to the establishment of civilian Jewish settlements on state and public lands. Regarding private property, Israel is obliged to respect it but may expropriate it (in consideration for payment) for various public purposes, according to accepted criteria in law-abiding democratic nations.

This position was confirmed in the Levy Committee Report (2012), authored by a committee established by the Israeli government, the members of which were Supreme Court Justice (ret.) Edmund Levy (chairman), District Court Justice (ret.) Tchia Shapira, and former Legal Adviser to the Foreign Ministry, Attorney Alan Baker.³⁰ The Committee held that the legality of the settlements’ presence derives from the Jewish people’s historical, indigenous, and legal rights to settle in those areas, validated in international documents recognized and accepted by the international community.

The Oslo Agreements with the PLO

The 1995 Interim Agreement between Israel and the PLO does not cover the matters to be negotiated regarding permanent status, including Jerusalem and settlements (Art. XXXI(5) of the Interim Agreement). It provides that “neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions” (Art. XXXI(6)). It is true that Article XXXI(7) determines that “neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” However, had this provision been capable of preventing the establishment of new settlements, then it would have rendered paragraph (6) devoid of meaning and, therefore, redundant. The Palestinian Authority (PA) has not applied such an interpretation to its own acts since such an interpretation would have prevented the Arab population, too, from undertaking any building on the territories handed over to the PA under the Interim Agreement. Furthermore, in Article 27 (Planning and Zoning) of Annex III (Protocol Concerning Civil Affairs) of the Interim Agreement, the Palestinian side had undertaken to ensure that no construction close to the settlements and military locations would harm, damage, or adversely affect them or the infrastructure serving them.

It has been further pointed out that, during the negotiations on the Interim Agreement in 1995, the Palestinian delegation requested that a “side letter” be attached, the text of which would be agreed upon, whereby Israel would commit to restricting settlement construction in Area C during the process of implementation of the agreement and the ensuing negotiations. However, the Palestinian leadership ultimately withdrew its request for such a side letter.³¹ Hence, nothing in the Interim Agreement restricts Israel’s right to establish settlements, as well as to expand the existing ones.

Israeli Practice Regarding the Settlements

As observed above, given the sui generis status of Judea and Samaria and the Gaza Strip, Israel was under no obligation to apply the Fourth Geneva Convention. However, in the cases deliberated in Israeli courts, the state declared that, although not legally obliged to apply these rules, it would nevertheless apply the humanitarian provisions included therein. The courts accepted the state’s position without deciding this issue on its merits. This is the background against which one must read the decisions of the Israeli Supreme Court in the cases deliberated before it. The Supreme Court has declined to address the legality of Jewish settlements beyond the Green Line since their status would be determined definitively in the peace treaty, when such is signed, and “until then, it is the duty of the respondent [i.e., the commander of the Israel Defense Forces in the Gaza Strip] to protect the civilian population (Arab and Jewish) in the area under its military control.”³²

The court ruled that private lands may be seized (against consideration) for the purpose of civilian settlements only where such a settlement is necessary for security reasons, whereas the expropriation of private land for settlement purposes not motivated by security needs is prohibited (e.g., the Elon Moreh case).³³ The court has ordered the eviction of Jewish settlers upon suspicion that Palestinian private property had been used for building a Jewish settlement, or a neighborhood, or even minor parts of houses within that neighborhood, decades after the settlement had been established, even if that land had never before been the home of or cultivated by any Palestinian.³⁴

Even if Israel had been an alien occupying power in Judea, Samaria, and the Gaza Strip, Jewish settlements there would have still been permissible under international law. Under the sixth paragraph of Article 49 of the Fourth Geneva Convention (to which Israel is a High Contracting Party), an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.”³⁵ According to the Commentary of the International Committee of the Red Cross (ICRC), this paragraph was intended to “prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”³⁶ It is noted that a breach of this prohibition was not considered a grave breach of the convention. Additional Protocol I, added to the Geneva Convention in 1977, provides (Art. 85(4)) that a breach of the prohibition would be considered a grave breach.³⁷ Israel is not a contracting party to the protocol.

Israel has never forcibly uprooted its civilians or transferred large numbers of them to these territories. Israel has only allowed people to settle of their own free will on land that is not privately owned. In some cases, Israel allowed its citizens who, either themselves or their parents, owned land in Judea and Samaria or in east Jerusalem before 1948 and had been expelled or dispossessed by Jordan to return to their land and properties after 1967. The Geneva Convention does not apply to such settlements. Israel did not attempt to confiscate the land or uproot the local population out of political or racial motivation, nor has it sought to alter the demographic nature of the area.³⁸

The voluntary settlement of citizens of the occupying power in occupied territory (not on private land) is permissible, as otherwise there would be no meaning to the term “transfer,” which the provision forbids.³⁹ The purchase of land by citizens of the occupying power in occupied territories is likewise not banned.⁴⁰ Nor is there any obstacle to the occupying power taking active steps to settle its citizens in civilian settlements in the occupied territory if the settlement is justified for security reasons and is established in a strategic location.⁴¹

Regarding state-owned land, Hague Regulation 55 provides that the occupying state is only an administrator and usufructuary of “public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country.” It must safeguard the capital of these properties (subject to regular wear and tear). Property ownership is not transferred to it, but it may enjoy its benefits. The occupying state may also let, lease, or cultivate the land.⁴² Hence, the use of public land for settlements is not prohibited as long as it does not involve the transfer of ownership and remains subject to the outcome of the permanent status negotiations. In practice, registration of property ownership in Israel’s settlements in the areas is not in the name of the residents but in the name of the state and subject to the outcome of the negotiations on the areas’ permanent status.

The situation is different for private property. According to Hague Regulation 46, the occupying state must respect private property and may not confiscate it, that is, expropriate it without compensation for an illegal purpose. However, the occupying state may temporarily take possession of privately owned land, which is against consideration, to establish civilian settlements that serve its security needs.⁴³

The Palestinian Position in International Law

A Palestinian Right to Self-Determination

According to the Advisory Opinion of the International Court of Justice (ICJ) regarding “The Wall,”⁴⁴ only the Palestinian people have the right to self-determination in all areas of Judea and Samaria beyond the Green Line. The General Assembly resolution seeking the Advisory Opinion bears the title “Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory.” Even though Israel has been condemned countless times by numerous members of the international community, first and foremost the General Assembly, these assertions deserve a critical analysis.

An examination of the various documents dealing with the Palestinians and their claim to self-determination reveals that the Palestinians themselves do not consider that the recognition of a right to self-determination in these territories will conclude their national claims. In fact, they appear to view their position as parallel to the Jewish people or rather as a substitute for them.

The parallel is inappropriate. The Jewish people have only one homeland where they can realize their right to self-determination. The Palestinians maintain (Art. 1, 1968 PLO Charter) that “Palestine is the homeland of the Arab Palestinian people; it is an indivisible part of the Arab homeland, and the Palestinian people are an integral part of the Arab nation.” Yet the Arab nation has more than 20 states in which they have realized their self-determination, including Jordan, ruled by a Bedouin minority, in which the Palestinians form most of the population in a territory comprising, as noted, about 76% of the overall territory allocated initially to the British Mandate for Palestine.

Moreover, the Palestinian claim to self-determination in the whole of Palestine refers not only to Arabs currently living in the areas, but also to any Arab defined as a refugee according to the rules laid down by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), established by the UN after Israel’s War of Independence specifically to “carry out direct relief and works programs for Palestine refugees.” This claim covers all people who lived in Palestine for at least two years prior to the conflict of 1948, that is, between June 1946 and May 1948, and lost their home and livelihood because of the Israeli–Arab conflict, as well as their offspring to eternity, regardless of whether they have acquired citizenship elsewhere. This is why, since 1948, the number of Palestinian refugees has grown from about 600,000 (like the number of Jews who had fled all Arab states at that time and have all since been absorbed into Israel) to 5.9 million at present.⁴⁵

UN Security Council Resolution 242 declared the necessity “for achieving a just settlement of the refugee problem.” Yet it made no mention of the Palestinian refugees. This was no chance omission; the resolution was drafted in recognition of the fact that there were refugees on both sides. Indeed, when discussing a just settlement to bring about an end to the dispute, it is impossible to ignore the fact that the War of Independence produced both Jewish and Arab refugees.

In recent years, a claim is frequently heard that the Palestinians are a separate people, and thus, there was no exchange of population following the War of Independence. However, there is no “Palestinian” language and no specific “Palestinian” culture or history. The Palestinians are Arabs, indistinguishable from Jordanians, Syrians, Lebanese, Iraqis, and others.

A declaration by Jamal al-Husseini, representative of the Arab Higher Committee to the United Nations Ad Hoc Committee on the Palestinian Question, which debated the question of Palestine in 1947, makes this point clearly (even though it ignores the lack of unity and rivalries between the Arab factions):

One other consideration of fundamental importance to the Arab world was that of racial homogeneity. The Arabs lived in a vast territory stretching from the Mediterranean to the Indian Ocean, spoke one language, and had the same history, tradition, and aspirations. Their unity was a solid foundation for peace in one of the most central and sensitive areas of the world. It was illogical, therefore, that the United Nations should associate itself with the introduction of an alien body into that established homogeneity, a course that could only produce new Balkans.⁴⁶

Likewise, the testimony given in 1937 by the secretary-general of the Arab Higher Committee in Mandatory Palestine, Auni Abdul Hadi, to the British Royal Commission (the Peel Commission):⁴⁷

There is no such country as Palestine! “Palestine”‘ is a term the Zionists invented! There is no Palestine in the Bible. Our country was, for centuries, part of Syria.

Prior to 1967, the Palestinians who lived in Judea, Samaria, and the Gaza Strip did not demand a separate right to self-determination.

The Foreseeable Consequences of Fulfilling Palestinian Aims

The architects of the Oslo Agreements expected them to establish a sound economic base in the territories that were transferred to Palestinian Authority rule to enhance a just, lasting, and comprehensive peace in both Israel and these territories. Such a development has not taken place. Instead, the PA has given Israel a preview of the risks posed by a terrorist entity established alongside it.

The PLO Charter of 1968 states that “armed struggle is the only way to liberate Palestine,” and that further “it is the overall strategy, not merely a tactical phase. The Palestinian Arab people assert their absolute determination and firm resolution to continue their armed struggle and to work for an armed popular revolution for the liberation of their country and their return to it. They also assert their right to normal life in Palestine and to exercise their right to self-determination and sovereignty over it.” Other articles of the Charter assert that “the partition of Palestine … and the establishment of the state of Israel are entirely illegal,” and that “the Balfour Declaration, the Palestine Mandate, and everything that has been based on them, are deemed null and void.” Chairman Yasser Arafat’s promise to President Bill Clinton to amend the Charter has not been fulfilled. To this day, no new charter has been drawn up. The Hamas Covenant, for its part, calls for the obliteration of the State of Israel by the Islamic resistance movement, whose path is jihad and loftiest wish is death for the sake of Allah. According to the covenant, jihad for the liberation of Palestine is an individual duty.

The withdrawal from the Gaza Strip offered yet another preview of what happens when Israel withdraws, and control passes entirely into the hands of the Palestinian leadership. It might have been expected that the Palestinians would make the best of their complete control of this beautiful sea-side area, in which innovative Israeli agricultural settlements had made successful products for consumption in Israel and abroad and in which Israel had established an industrial zone in which Jews and Arabs cooperated both in ownership of the various industrial plants and in management and employment. All of those were dismantled or destroyed shortly after Israel’s withdrawal. Not only has Hamas not established civilian institutions to tend to the Palestinians’ welfare, but instead, they have established a terror entity that does not allow for any kind of coexistence with its neighbor.

In January 2006, the Islamic Hamas movement won the elections to the Palestinian Legislative Council. Several rounds of confrontation between PLO operatives and Hamas in Gaza ended with Hamas gaining control in June 2007 after taking over military installations that had previously been under PLO control, followed by the execution of officers of the PLO security forces. In response, PA leader Mahmoud Abbas dismantled the Palestinian Unity Government. Since then, control of Arab towns in the West Bank has been in the hands of Fatah (the largest PLO faction), while Hamas controls Gaza and enjoys widespread support in the West Bank as well.

Israel’s withdrawal from Gaza did not contribute to peace. In the aftermath of the disengagement, Hamas has invested the massive resources received from donor states in building a vast network of underground tunnels, amassing armaments, and launching thousands of rockets at Israeli cities, forcing Israel to mount successive military operations in the Gaza Strip.

On October 7, 2023, the Hamas and Palestinian Islamic Jihad terror organizations launched an attack on Israel. They invaded Israeli sovereign territory with a force of thousands and slaughtered, in the most gruesome manner, about 1,400 people, mostly civilians, including women, children, and babies. The terrorists abused the victims, beheaded adults and babies, burnt people alive, including babies, raped women brutally, and committed atrocities, the like of which has not been seen since the genocide of European Jews during the Holocaust. More than 4,000 people were injured, many of them gravely. In addition, about 250 people (among them elderly citizens, women, children, and babies, as well as people in feeble health) were taken hostage to Gaza. Thousands of rockets and missiles have since been launched at Israeli cities, towns, and villages, targeting only civilians. Following that attack—in which war crimes, crimes against humanity, and genocide crimes were committed— the Israeli government declared war against Hamas and Palestinian Islamic Jihad. The war on terror is still ongoing, mainly in Gaza but also in Judea and Samaria, with both PLO and Hamas members taking part in terrorist activities against the Israeli civilian population both inside and outside the Green Line.

Is There a Palestinian Right to Statehood?

In international law, the objective conditions for the existence of a state are those determined in the Montevideo Convention on the Rights and Duties of States (1933): (1) a permanent population; (2) a defined territory; (3) an effective government; and (4) the capacity to enter into international relations with other states.

Those conditions have not been fulfilled. The territory of the new Arab state must be determined in an agreement with Israel; the territories in which powers have been transferred to the PLO are currently under dual government—that of the Palestinian Authority in the West Bank and Hamas in the Gaza Strip; and the status of many residents is that of eternal refugees who do not consider themselves permanent residents of those territories. The PLO does not even enjoy widespread support in the West Bank. They claim a right of return for themselves to Israeli territory within the Green Line. To date, the PA and Hamas have refused to recognize Israel’s right to exist as the state of the Jewish people.

The conditions for membership in the United Nations are stipulated in Articles 3–6 of the UN Charter. Pursuant to Article 4(1): “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”

A Security Council recommendation in support of membership is a precondition for admission to the United Nations. Under Article 27(3) of the UN Charter, Security Council resolutions on all substantive matters require the affirmative votes of nine member states, including the agreement of all permanent members of the Security Council (since the permanent members have the power to veto a council decision). Once the recommendation is adopted, the membership question passes to the General Assembly. Since admission to the United Nations is an “important question” under Article 18(2) of the UN Charter, the decision on admitting a new member state must be made “by a two-thirds majority of members present and voting.” Each of the 193 member states has one vote, and no state has veto power.

On November 11, 2011, the Security Council approved a report by a special council committee stating that it could not make a unanimous recommendation to the council concerning the Palestinian Authority’s application for admission as a UN member.⁴⁸ The United States announced it would veto any decision supporting the application. Two other permanent members, France and Britain, said that they would abstain in the event of a vote. Alongside the states that supported the application, there was a group of states maintaining that the PA did not meet the conditions required by the UN Charter—specifically, that it was not “peace-loving,” that it would not accept the obligations of member states under the Charter, and that it would not be capable of, or willing to, fulfill those obligations.

On November 29, 2012, precisely on the 65^th anniversary of the General Assembly’s Partition Resolution of November 29, 1947, the General Assembly, by a large majority (138 members in favor, nine against, and 41 abstentions), adopted a resolution to “accord to Palestine non-member observer State status in the United Nations.” Even some of the nations that supported the upgrade, such as New Zealand, pointed out that whether Palestine is a state is a separate question and that it can only be a state de facto with Israel’s agreement.

Comparative Perspectives

Since World War II, several wars have resulted in settlements in territories occupied during the war. A study examining such incidences revealed not a single case where the settlers were required to evacuate their homes after those territories reverted to the state whose territory had been occupied, not even where the occupying state encouraged the emigration of its residents to influence the demography of the occupied territory, in contravention of the provisions of the Fourth Geneva Convention.⁴⁹

Several cases before the European Court of Human Rights (ECtHR) are instructive. Those concerned claims of Greek Cypriots regarding the homes in Northern Cyprus that they had been forced to leave following the Turkish occupation in 1974. At the time of the occupation, some 200,000 Greek Cypriots, who had hitherto lived in the area occupied by the Turks, were forced to leave. At the same time, some 80,000 Turkish Cypriots fled their homes in the Greek part of the island. Turkey continues to occupy that area to this day. About half of the region’s residents are Turkish immigrants who were settled there by the Turkish government. The TRNC (Turkish Republic of Northern Cyprus) has been recognized only by Turkey. The Turkish settlement in Northern Cyprus was undertaken in breach of the Geneva Convention.

In an application that was heard on the merits in 1996, the Loizidou case,⁵⁰ the court ruled that the Greek Cypriots who were forced to leave their homes in 1974 were the legal owners of the property that remained in the territory occupied by Turkey. Furthermore, since the occupation, Turkey has been responsible for the continuing violation of their rights under the European Convention. The TRNC’s claims that it had expropriated the property were dismissed; since the TNRC had not been recognized in international law, such expropriation was likewise not recognized. Therefore, the applicant’s right to enjoy her possessions had been violated.

By contrast, the court ruled that there was no violation of the applicant’s right to respect for her home pursuant to Article 8 of the convention. In 1972, the claimant married and moved to Nicosia, in a neighborhood that became part of the island’s Greek side two years later. Even if she intended to return to her family home on the Turkish side, such intention is not protected under the convention. “Home” is the place where a person actually lives, not the place where he grew up, or the place that had been the family home for generations (para. 66). Regarding the compensation, the court ruled that the parties should negotiate an agreed settlement within the six months after the ruling and notify the court of any agreement that they may reach.

In 2005, Turkey established the Immovable Property Commission (IPC) in Northern Cyprus. The commission’s purpose was to “establish an effective domestic solution” for the claims of Greek Cypriots who had been forced to leave their property in Northern Cyprus.

In 2010, in the case of Demopoulos,⁵¹ the ECtHR heard applications of Greek Cypriots who claimed that the remedies provided by the IPC—that is, compensation—were wholly inadequate since they effectively prevented them from reclaiming possession of their property and homes. The applicants claimed that financial compensation should be awarded only in rare instances where it was materially impossible to restitute their homes (e.g. if the house had been destroyed). In any other event, the appropriate remedy was the de facto restitution of their homes. The Turkish government submitted that the restitution of private property is impossible if the property has been transferred to other private persons, is in military areas, or is being used for a public purpose—roads, schools, hospitals, or serves some other public interest.

As a starting point, the court considered that “some 35 years have elapsed since the applicants lost possession of their property in northern Cyprus in 1974. Generations have passed. The local population has not remained static. Turkish Cypriots who inhabited the north have migrated elsewhere; Turkish-Cypriot refugees from the south have settled in the north; Turkish settlers from Turkey have arrived in large numbers and established their homes. Much Greek-Cypriot property has changed hands at least once, whether by sale, donation or inheritance” (para. 84). The court dismissed (paras. 92ff.) the applicants’ arguments that the failure to restitute their property in specie retroactively legitimized illegal Turkish acts.

The court further added (para. 116) that to order Turkey to effect restitution in every case, save those in which it was physically impossible (e.g. if the actual property no longer existed), would risk being arbitrary and injudicious. Some 35 years after the applicants, or their predecessors in title, had left their property, Turkey also had to take into account all the legal and practical factors that prevented restitution, primarily the rights acquired in the intervening period by third parties. The European Court of Human Rights could not be expected to interpret and apply the rules of the convention in a manner that would unconditionally obligate a government to embark on the forcible eviction and rehousing of potentially large numbers of men, women, and children, even to vindicate the rights of victims of violations of the convention. To do so would create disproportionate new wrongs.

The court reiterated its determination that it is the duty of the states to respect the right of every citizen to his home, meaning only a real home with which the person has “a concrete tie in existence at this moment in time,” not just “‘family roots,’ which is a vague and emotive concept.” For instance, regarding the claim of one applicant to restitution of her home, the court ruled (para. 137) that

the Applicant was very young at the time she ceased to live in the then-family home in 1974…. The applicant has lived with her family elsewhere for almost her entire life. The fact that she might inherit a share in the title of that property in the future is a hypothetical and speculative element, not a concrete tie in existence at this moment in time. The Court accordingly does not find that the facts of the case are such as to disclose any present interference [by Turkey] with the applicant’s right to respect for her home.

To summarize, the ECtHR ruled that all the applicants must first exhaust their domestic remedies before the Immovable Property Commission of Northern Cyprus. The court was satisfied that the IPC’s composition met the requirements of independence and impartiality and that it carried out its functions according to legislation that sought to provide a mechanism of redress and that had been interpreted to comply with international law, including the convention, providing an accessible and practical framework of redress. The court noted that the applicants were not compelled to appear before the IPC. They could await a political solution when the international dispute over Cyprus would be settled peacefully.

Conclusions

The legality of the presence of Jewish settlements in Jerusalem, Judea and Samaria, and the Gaza Strip derives from the historical, indigenous, and legal rights of the Jewish people to settle in those areas, validated in international documents recognized and accepted by the international community.

Under public international law, Israel is entitled to diligently encourage and promote close Jewish settlement of the territories lying to the west of the Jordan River, realizing the principles set out by the League of Nations in the original Mandate document and later confirmed in Article 80 of the UN Charter.

Denying Jews their right to live in the Old City of Jerusalem and Judea and Samaria means denying their ties to their biblical and historical homeland, precisely those ties that have been recognized in these documents.

The opposing position—that the Palestinian Arabs are entitled to an independent state in all the territories while Jewish settlement is forbidden under international law—is unfounded in international law. The various documents dealing with the Palestinian claim to self-determination reveal that the Palestinians themselves do not consider that the recognition of a right to self-determination in these territories will conclude their national claims since those, including a claim of a right to “return,” extend “from the [Jordan] River to the [Mediterranean] Sea.”

Following Israel’s War of Independence in 1948, there was an exchange of approximately 600,000 people from each side. Whereas Israel absorbed the Jewish refugees, the Arab states, rather than absorbing the Arab refugees, invented a new Palestinian people that had never before ruled the land, even though there is no “Palestinian” language and no specific “Palestinian” culture or history.

The PLO Charter of 1968 determines that “armed struggle is the only way to liberate Palestine,” that “it is the overall strategy, not merely a tactical phase,” that “the partition of Palestine … and the establishment of the state of Israel are entirely illegal,” and that “the Balfour Declaration, the Palestine Mandate, and everything that has been based on them, are deemed null and void.” The Hamas Covenant calls for the obliteration of the State of Israel by the Islamic resistance movement, whose path is jihad and whose loftiest wish is death for the sake of Allah. According to the Covenant, the jihad for the liberation of Palestine is an individual duty. Given their common purpose and aim, it does not matter which of these, the PLO or Hamas, is going to lead Arab Palestinians.

The Oslo Agreements enhanced “a just, lasting, and comprehensive peace.” Yet, since they came into effect, the Middle East has witnessed not peace but violence and terror of the worst kind in recent history. The establishment of the Palestinian Authority and the subsequent takeover of the Gaza Strip by Hamas, as well as the popular support Hamas enjoys in Judea and Samaria, should serve as a “guide to the bewildered” of the grave risks posed by such an Arab state, which may eventually lead to the destruction of the Jewish state.

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Notes