A narrative has emerged that Israel's settlements in the West Bank are a "tragedy." The fatal flaw lies in the original sin of supposedly lawless occupation of land, in contravention of the Geneva Convention. It makes a strong emotional pitch to a sense of justice, a major influence on the thinking of many American Jews. But the narrative is built on a flawed foundation.

For example, Gershom Gorenberg in his Op—Ed in the New York Times, "Israel's Tragedy Foretold," on March 10, 2006, opines that Israelis and their leaders have finally seen the light, namely that Israel should abandon the settlements.

In so concluding, Mr. Gorenberg  puts his faith in an opinion by Legal Counsel to the Israeli Foreign Ministry, one Theodor Merion who wrote  in 1967

'My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."

Mr Gorenberg laments that Israel, in disregard of this advice, started to build settlements with the 'sadly mistaken confidence that the legal, ethical and diplomatic difficulties of settlement could somehow be avoided.'  The tragedy, according to Mr. Gorenberg, is that Israel now has to untangle the mess at great human and financial cost.

Mr. Meron's conclusion has been thoroughly discredited by legal scholars over the years and Mr. Gorenberg's thesis which rests upon it must suffer the same fate.

Professor Talia Einhorn, Adjunct Professor of Law, Tel Aviv University, in The Status of Palestine/Land of Israel and Its Settlement Under Public International Law published by NATIV Online in 1993, advises

In 1967, following the Six Day War, the territories of Yesha, which had been originally designated for the Jewish national home according to the Mandate document, returned to Israeli rule. Leading international law scholars opined that Israel was in lawful control of Yesha, that no other state could show better title than Israel to Yesha's territory, and that this territory was not 'occupied' in the sense of the Geneva Convention, since those rules are designed to assure the reversion of the former legitimate sovereign which, in this case, does not exist.  Israel was therefore entitled to declare that it has exercised its sovereign powers over Yesha. 

In practice, however, for political and other reasons, Israel exercised its sovereign powers only with respect to East Jerusalem. Regarding the rest of Yesha, Israel's official position was that Israel was entitled to annex them, and that, since they had not been taken from a legitimate sovereign, the Fourth Geneva Convention and the Hague Regulations 1899/1907 were inapplicable there. Nonetheless, Israel chose voluntarily to observe and abide by the humanitarian provisions included therein.' [emphasis added]

One of the 'leading international scholars' she refers to was the late Eugene W. Rostow, Dean of Yale Law School, US Undersecretary of State for Political Affairs between 1966 and 1969.   The New Republic, on April 23, 1990, published his article entitled,  Historical Approach to the Issue of Legality of Jewish Settlement Activity, in which he argued

'...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, ...'

'...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] 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...

'...The controversy about Jewish settlements in the West Bank is not, therefore, about legal rights but about the political will to override legal rights

In 1991, The New Republic published another article by Dean Rostow, entitled Resolved: are the settlements legal? Israeli West Bank policies, in which he again argued,

It is common even for American journalists to write that Security Council Resolution 242 is "deliberately ambiguous," as though the parties are equally free to rely on their own reading of its key provisions.

Nothing could be further from the truth. Resolution 242, which, as Undersecretary of State for Political Affairs between 1966 and 1969, I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until "a just and lasting peace in the Middle East" is achieved. [..]

Five—and—a—half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from "all" the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the "fragile" and "vulnerable" Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called "secure and recognized" boundaries, agreed to by the parties. In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims.

Resolution 242 built on the text of the Armistice Agreements of 1949, which provided....  "no provision" of the Armistice Agreements "Shall in any way prejudice the right, claims, and positions" of the parties "in the ultimate peaceful settlement of the Palestine problem." In making peace with Egypt in 1979, Israel withdrew from the entire Sinai, which had never been part of the British Mandate.

... As a result, more than 90 percent of the territories Israel occupied in 1967 are now under Arab sovereignty.

Now that Israel has withdrawn from Gaza, this percentage has increased.

Thus the 'occupation' was and is legal, having been authorized by the Security Council and the settlements are legal pursuant to the trust created by the British Mandate.  In accordance with Israel's rights, The Oslo Accords did not restrict further settlement.  The Mitchell Report which recommended a freeze on settlement activity was incorporated into the Roadmap which Israel accepted.  The Palestinian Authority is in fundamental breach of its obligations under the Roadmap.  Therefore, Israel is not bound to maintain the freeze.

The fact remains that Israel has every right, according to international law, to defend its citizens, to remain in occupation, to build settlements and to refuse to acknowledge a 'right of return'.

The tragedy is that the Arabs refused to accept the existence of the State of Israel and have refused to negotiate peace based on the intent of Resolution 242.  Anwar Sadat broke the mold in 1979 and was assassinated for his pains.

The tragedy is that the Arabs have refused to absorb the Arab refugees as Israel absorbed the Jewish refugees, preferring instead to doom them to live in squalor as a means of putting pressure on Israel.  The late King Hussein of Jordan was the only exception.  He too recognized the State of Israel. 

The tragedy is that the PA created and empowered by the Oslo Accords choose to make war rather than peace thereby sacrificing the well being of the people it represented.  And the tragedy is that the world aided and abetted it in this endeavor never once demanding that it honor its obligations or else.

Ted Belman is a retired lawyer and currently Editor of Israpundit.com