DEC. 28 2016 Mosaic Magazine
The American decision to abstain from voting on the UN’s recent condemnation of Israeli settlements was, writes Mark Goldfeder, “the cowardly move of a lame-duck politician” intent on taking “a symbolic parting shot at Prime Minister Benjamin Netanyahu and President-elect Donald Trump.” Concerning the widely held notion that Israeli settlements violate international law, Goldfeder comments:
In 1922 the League of Nations Mandate for Palestine established an area (which included the West Bank) to be a national home for the Jewish people. Article 6 of the mandate explicitly encouraged “close settlement by Jews on the land.” . . . [U]nder the international legal principle of Uti possidetis juris, . . . emerging states presumptively inherit their pre-independence administrative boundaries, and thus international law clearly dictates that Israel [would] inherit the boundaries of the Mandate of Palestine as they existed in May 1948. Israel thus has title to the land. . . .
If there was ever an [illegal] occupation of Palestinian territory, it happened between 1948 and 1967, when two of the invading Arab armies, Jordan (West Bank) and Egypt (Gaza Strip) occupied territory that they had taken through aggressive action—the kind of aggressive action that the new [Security Council] resolution explicitly reminds us is forbidden under international law. This was, of course, territory that was part of the Mandate for Palestine and therefore rightfully under Israeli title. . . . The [pre-1967] Green Line was drawn for no other reason than to mark off on a map how far the two invading armies had managed to get. The armistice agreements themselves state that these were not ever meant to be actual borders. Thus to give meaning under international law to these “pre-1967 lines” is, ironically, to ratify retroactively aggression against the mandate and to support occupation. . . .
As [Israel’s seizure of these areas during the Six-Day War] was the only defensive re-conquest of previously occupied territory that has ever happened under the UN charter, one might be forgiven for wondering if the law on this point is somewhat murky, but it is not; . . . pre-1967 sources evidence the fact that defensive conquest would be considered legitimate, but the truth is that even if the law was somehow gray in this area, one of the clearest doctrines of international law is the Lotus principle, which says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. [In other words], if there is no law against it—and there is no law against defensive re-conquest—then it is legal under international law. . . .
[This] is not to say that on a political level the settlement issue is at all clear-cut. It is certainly true that the areas in question are disputed territory, and that “settlements are one of the obstacles to peace” in the sense that it would be helpful for the negotiations (at least for one side) if Israel would stop.
But it is also true that there is no consensus on what other “obstacles” there are, or how many there are, or how much of an “obstacle” the settlements are, or why only Israeli and not Palestinian settlements, and whether the Israeli settlements, which actually cover only 1.7 percent of the disputed West Bank territory, are in fact a necessary bargaining chip for Israel to hold when dealing with an opponent that still refuses to recognize its very right to exist.