The Editors at inSIGHT are departing from our usual pattern of writing and publishing in this – the second in a series of three columns – to balance the scales at least a bit and put history and law regarding Israel and Jewish “close settlement on the land” in their rightful place. This is a response to UN Security Council Resolution 2334 and to the presumed outcome of the Paris “Peace” conference Sunday.
Professor Eugene V. Rostow (1913-2002) served as dean of Yale Law School, Undersecretary of State for Political Affairs, and director of the US Arms Control Agency. He co-authored UN Security Council Resolution 242 and was prolific on the role of international law in determining how and where Jews could settle. It is not a spoiler to say his view was “everywhere.” The following is excerpted from his authoritative 1980 Yale International Law Journal article, “Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate.” To read Part I click here.
Part II
While the Permanent Court of International Justice, its successor the International Court of Justice, and many other authorities have confirmed the status of mandates in general and of the Palestine Mandate in particular, the dispute over the future of German Southwest Africa, long a South African Mandate, and now generally called Namibia, has been the most prolific and important source of international law on the subject.
In its series of decisions and advisory opinions on Namibia, the International Court of Justice has 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. All states, the Court, and the Security Council have responsibility for seeing to it that the terms of the Mandate are respected and carried out…
In Palestine, Israel and Jordan already exist as states, and only the Gaza Strip and the West Bank remain as unallocated parts of the Mandate. The reasoning of the Namibia decisions requires that the future of these two territories be arranged by peaceful international agreement in ways that fulfill the policies of the Mandate.
Jewish rights of “close settlement” in the West Bank are derived from the Mandate. Therefore, they exist; it is impossible seriously to contend, as the United States government does [with the Carter administration’s March 1, 1980 vote for a Security Council resolution calling on Israel to dismantle all post-June 19967 West Bank Jewish communities], that Israeli settlements in the West Bank are illegal.
It is true that since the Six-Day War in 1967 the United States government has taken the nominal position that Israel held the Sinai, the Golan Heights, the West Bank, and the Gaza Strip only as the military occupant under international law. The State Department has maintained that under Article 49 of the Fourth Geneva Convention, a state administering the territory of another state as military occupant cannot in the absence of military necessity or governmental need displace the inhabitants of the territory and establish its own citizens in their place. The Department’s position is in error; the provision was drafted to deal with “individual or mass forcible transfers of population,” like those in Czechoslovakia, Poland, and Hungary before [, during] and after the Second World War. Israeli administration of the areas has involved no forced transfers of population or deportations.
The Israelis responded to the State Department in an argument of great cogency, which the State Department has never answered. The Israeli view is that while the 1907 Hague Convention and the 1949 Geneva Convention apply to the Israeli occupation of the Golan Heights and the Sinai, which are Syrian or Egyptian territory in the contemplation of international law, they do not apply to the Israeli occupation of the West Bank and the Gaza
