With his remarks about the Israeli settlements, Foreign Secretary David Miliband has signalled a sharp deterioration in relations between Britain and Israel. Miliband has urged enforcement of an EU boycott of produce from Israeli settlements in the West Bank, settlements he has called ‘illegal’. I asked the Foreign Office for the legal basis of its opinion that the settlements were illegal. It replied that it was the Geneva Convention, which forbade the movement of a population into occupied territory. I asked whether it was basing this on a ruling by any particular body or whether this was merely its own reading of the Geneva Convention. Oh, everyone accepts this is what the Geneva Convention means, came the breezy reply. I then asked what was its legal definition of the ‘occupied territories’. ‘As defined by UN resolutions – which everyone accepts’— came the even breezier reply.
Is that so.
No it is not. It is in fact a total misrepresentation of international law.
First, Article 2 of the Geneva Convention provides that the agreement applies ‘to all cases of partial or total occupation of the territory of a high contracting party’, or sovereign territory. Thus the Convention cannot apply to the West Bank, nor to East Jerusalem and the Gaza Strip for that matter, because these have never been recognized as sovereign territory. As part of Mandatory Palestine, they never belonged to any sovereign state but were occupied and administered illegally by Jordan and Egypt between 1948 and 1967 after the Arab war of aggression against Israel in 1948.
Second, Article 49 of the Geneva Convention provides that an occupying power ‘shall not deport or transfer part of its own civilian population into the territory it occupies.’ This was designed to prohibit inhumane practices such as by the Nazis and the Soviets before and during the Second World War in forcibly transferring or deporting people into or out of occupied territories. But the Israeli settlers in the West Bank went there voluntarily. They have not been ‘deported’ or ‘transferred’ by the government of Israel. The only force Israel has used is in getting them out of Gaza. So clearly the Geneva Convention does not apply in any sense to the West Bank settlements.
Third, Israel is ‘occupying’ the West Bank (which on a day-to-day basis is not ‘occupied’ but ruled by the Palestinians) entirely within its rights under international law, which recognises the right of a country that has been attacked to occupy and retain land that continues to be used for belligerent purposes against it. Which is why the UN’s famous Resolution 242 was deliberately drafted to refer to Israel withdrawing from ‘territories’ rather than all the territories – and then only when the Arabs end their war against Israel.
Fourth, the West Bank is not Palestinian land in any sense. As said before, it was originally part of the British Mandate and then illegally occupied by Jordan. Nor have the settlers occupied individual Palestinians’ land, but have mainly built on empty space. I do not condone the actions of some of these settlers against their Arab neighbours, nor their attitudes; and I would like them to leave most of these territories, in Israel’s own interests. But the claim that Israel has ‘stolen’ Palestinian land is simply a lie.
Fifth and most important of all is something that is almost totally overlooked. It is generally assumed that Israel’s claim to the West Bank originated in 1967. Not so. Jews lived in many parts of it for centuries – some of these places amongst the holiest of Jewish sites – and were ethnically cleansed from it in the last century by Arab pogroms in places like Hebron. It was in recognition of this, the historic and inalienable connection of the Jews to this land, that the original Mandate for Palestine – which included what is now the West Bank and Gaza – instructed Britain to facilitate ‘close settlement’ by the Jews in the whole of Mandate Palestine – a commitment which the British proceeded systematically to betray – because of
the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country.As the late Eugene Rostow, the former US Under -Secretary of State for Political Affairs who played a leading role in drafting Resolution 242, repeatedly said, that legal undertaking has never been rescinded. It is still legally binding. The UN charter explicitly stated that nothing in that charter should abrogate any pre-existing international instruments. Far from being illegally settled in the disputed territories, the Jews have every right to be there under international law -- which says specifically they should settle in the West Bank.
As Rostow wrote:
...the Jews have the same right to settle there as they have to settle in Haifa. The West Bank and the Gaza Strip were never parts of Jordan, and Jordan's attempt to annex the West Bank was not generally recognized and has now been abandoned. The two parcels of land are parts of the Mandate that have not yet been allocated to Jordan, to Israel, or to any other state, and are a legitimate subject for discussion.The Foreign Office’s apparent ignorance of international law derives from its own innate political hostility to Israel and its wholesale endorsement -- along with virtually the entire British intelligentsia -- of the mendacious propaganda of the enemies of Israel and the west. Miliband’s remarks have nothing to do with international law, history or the truth, which he has misrepresented and repudiated, but with dirty and shameful politics. It appears that the British government has now decided openly to side with the enemies of Israel – those enemies who really have been thwarting international law for six decades in their war of extermination.
Thus HMG is now marching in lockstep with its joyfully welcomed comrade across the pond -- who will shortly enter the White House and leave Israel abandoned, undermined, and under pressure to cut its own throat.