[Congressional Record (Bound Edition), Volume 160 (2014), Part 12]
[Extensions of Remarks]
[Pages 17135-17137]
[From the U.S. Government Publishing Office, www.gpo.gov]




    THE STATUS OF THE TERRITORIES OF JUDEA AND SAMARIA ACCORDING TO 
                           INTERNATIONAL LAW

                                 ______
                                 

                          HON. STEVE STOCKMAN

                                of texas

                    in the house of representatives

                       Thursday, December 4, 2014

  Mr. STOCKMAN. Mr. Speaker, today I would like to convey to the House 
important information regarding the legality of the presence of the 
State of Israel in Judea and Samaria under international law. Due to 
the unique and sui generis historic and legal circumstances of Israel's 
presence in Judea and Samaria, this presence cannot be considered to be 
an occupation. Moreover, provisions of the 1949 Fourth Geneva 
Convention, regarding transfer of populations, cannot be considered 
applicable, and were never intended to apply to the type of settlement 
activity carried out by Israel in Judea and Samaria. According to 
international law, Israelis have the lawful right to settle in Judea 
and Samaria, and consequently, the establishment of settlements cannot 
in and of itself be considered to be illegal. The following is an 
excerpt from the 2012 Levy Commission Report on the Legal Status of 
Building in Judea and Samaria that deals with international law. The 
full report can be viewed in its entirety at http://regavim.org.il/en/
levy-report-translated-into-english/.

    The Status of the Territories of Judea and Samaria According to 
                           International Law

       3. In light of the different approaches in regard to the 
     status of the State of Israel and its activities in Judea and 
     Samaria, any examination of the issue of land and settlement 
     thereon requires, first and foremost, clarification of the 
     issue of the status of the territory according to 
     international law.
       Some take the view that the answer to the issue of 
     settlements is a simple one inasmuch as it is prohibited 
     according to international law. That is the view of Peace Now 
     (see the letter from Hagit Ofran from 2 April 2010); B'tselem 
     (see the letter from its Executive Director Jessica Montell 
     from 29 March 2012, and its pamphlet Land Grab: Israel's 
     Settlement Policy in the West Bank, published May 2002); Yesh 
     Din and the Association for Civil Rights in Israel (ACRI) 
     (see the letter from Attorney Tamar Feldman from 19 April 
     2012); and Adalah (see the letter from attorney Fatma Alaju 
     from 12 June 2012).
       The approach taken by these organizations is a reflection 
     of the position taken by the Palestinian leadership and some 
     in the international community, who view Israel's status as 
     that of a ``military occupier,'' and the settlement endeavor 
     as an entirely illegal

[[Page 17136]]

     phenomenon. This approach denies any Israeli or Jewish right 
     to these territories. To sum up, they claim that the 
     territories of Judea and Samaria are ``occupied territory'' 
     as defined by international law in that they were captured 
     from the Kingdom of Jordan in 1967. Consequently, according 
     to this approach, the provisions of international law 
     regarding the matter of occupation apply to Israel as a 
     military occupier, i.e. Regulations concerning the Laws and 
     Customs of War on Land. The Hague, 18 October 1907, which 
     govern the relationship between the occupier, the occupied 
     territory, and the Fourth Geneva Convention Relative to the 
     Protection of Civilian Persons in Time of War. Geneva, 12 
     August (1949).
       According to the Hague Regulations, the occupying power, 
     while concerning himself with the occupier's security needs, 
     is required to care for the needs of the civilian population 
     until the occupation is terminated. According to these 
     regulations, it is forbidden in principle to seize personal 
     property, although the occupying power has the right to enjoy 
     all the advantages derivable from the use of the property of 
     the occupied state, and public property that is not privately 
     owned without changing its fixed nature. Moreover, according 
     to this approach, Article 49 of the Fourth Geneva Convention 
     prohibits the transfer of parts of the occupying power's own 
     civilian population into the territory it occupies. 
     Accordingly, in their view, the establishment of settlements 
     carried out by Israel is in violation of this article, even 
     without addressing the type or status of the land upon which 
     they are built.
       In this context, we were presented with an approach by some 
     of the abovementioned organizations, whereby they do not 
     accept the premise that the lands that do not constitute 
     personal property are state lands. It was claimed that in the 
     absence of orderly registration of most of the land in Judea 
     and Samaria, and precise registration of the rights of the 
     local inhabitants, it is reasonable to assume that the local 
     population is entitled to benefit from land that is neither 
     defined nor registered as privately owned land. From this it 
     follows that the use of land for the purpose of the 
     establishment of Israeli settlements impinges on the rights 
     of the local population, which is a protected population 
     according to the Convention, and Israel, as an occupying 
     power, is obliged to safeguard these rights and not deny them 
     by exploiting the land for the benefit of its own population.
       4. If this legal approach were correct, we would, in 
     accordance with our Terms of reference, be required to 
     terminate the work of this Committee, since in such 
     circumstances, we could not recommend regularizing the status 
     of the settlements. On the contrary, we would be required to 
     recommend that the proper authorities remove them.
       However, we were also presented with another legal 
     position, inter alia by the Regavim movement (Attorneys 
     Bezalel Smotritz and Amit Fisher) and by the Benjamin 
     Regional Council (the expert legal opinion of Attorneys 
     Daniel Reisner and Harel Amon). They are of the view that 
     Israel is not an ``Occupying Power'' as determined by 
     international law inter alia because the territories of Judea 
     and Samaria were never a legitimate part of any Arab state, 
     including the kingdom of Jordan. Consequently, those 
     conventions dealing with the administration of occupied 
     territory and an occupied population are not applicable to 
     Israel's presence in Judea and Samaria.
       According to this approach, even if the Geneva Convention 
     applied, Article 49 was never intended to apply to the 
     circumstances of Israel's settlements. Article 49 was drafted 
     by the Allies after World War II to prevent the forcible 
     transfer of an occupied population, as was carried out by 
     Nazi Germany, which forcibly transferred people from Germany 
     to Poland, Hungary and Czechoslovakia with the aim of 
     changing the demographic and cultural makeup of the 
     population. These circumstances do not exist in the case of 
     Israel's settlement. Other than the fundamental commitment 
     that applies universally by virtue of international 
     humanitarian norms to respect individual personal property 
     rights and uphold the law that applied in the territory prior 
     to the IDF entering it, there is no fundamental restriction 
     to Israel's right to utilize the land and allow its citizens 
     to settle there, as long as the property rights of the local 
     inhabitants are not harmed and as long as no decision to the 
     contrary is made by the government of Israel in the context 
     of regional peace negotiations.
       5. Is Israel's status that of a ``military occupier'' with 
     all that this implies in accordance with international law? 
     In our view, the answer to this question is no.
       After having considered all the approaches placed before 
     us, the most reasonable interpretation of those provisions of 
     international law appears to be that the accepted term 
     ``occupier'' with its attending obligations, is intended to 
     apply to brief periods of the occupation of the territory of 
     a sovereign state pending termination of the conflict between 
     the parties and the return of the territory or any other 
     agreed upon arrangement. However, Israel's presence in Judea 
     and Samaria is fundamentally different: Its control of the 
     territory spans decades and no one can foresee when or if it 
     will end; the territory was captured from a state (the 
     kingdom of Jordan), whose sovereignty over the territory had 
     never been legally and definitively affirmed, and has since 
     renounced its claim of sovereignty; the State of Israel has a 
     claim to sovereign right over the territory.
       As for Article 49 of the Fourth Geneva Convention, many 
     have offered interpretations, and the predominant view 
     appears to be that that article was indeed intended to 
     address the harsh reality dictated by certain countries 
     during World War II when portions of their populations were 
     forcibly deported and transferred into the territories they 
     seized, a process that was accompanied by a substantial 
     worsening of the status of the occupied population (see HCJ 
     785/87 Affo et al. v. Commander of IDF Forces in the West 
     Bank et al. IsrSC 42(2) 1; and the article by Alan Baker: 
     ``The Settlements Issue: Distorting the Geneva Conventions 
     and Oslo Accords, from January 2011.
       This interpretation is supported by several sources: The 
     authoritative interpretation of the International Committee 
     of the Red Cross (IRCC), the body entrusted with the 
     implementation of the Fourth Geneva Convention, in which the 
     purpose of Article 49 is stated as follows:

       ``It is 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.''

       Legal scholars Prof. Eugene Rostow, Dean of Yale Law School 
     in the U.S., and Prof. Julius Stone have acknowledged that 
     Article 49 was intended to prevent the inhumane atrocities 
     carried out by the Nazis, e.g. the massive transfer of people 
     into conquered territory for the purpose of extermination, 
     slave labor or colonization.

       ``The Convention prohibits many of the inhumane practices 
     of the Nazis and the Soviet Union during and before the 
     Second World War--the mass transfer of people into and out of 
     occupied territories for purposes of extermination, slave 
     labor or colonization, for example. . . . The Jewish settlers 
     in the West Bank are most emphatically volunteers. They have 
     not been ``deported'' or ``transferred'' to the area by the 
     Government of Israel, and their movement involves none of the 
     atrocious purposes or harmful effects on the existing 
     population it is the goal of the Geneva Convention to 
     prevent.'' (Rostow)
       ``Irony would . . . be pushed to the absurdity of claiming 
     that Article 49(6) designed to prevent repetition of Nazi-
     type genocidal policies of rendering Nazi metropolitan 
     territories judenrein, has now come to mean that . . . the 
     West Bank . . . must be made judenrein and must be so 
     maintained, if necessary by the use of force by the 
     government of Israel against its own inhabitants. Common 
     sense as well as correct historical and functional context 
     excludes so tyrannical a reading of Article 49(6.).'' (Julius 
     Stone)

       6. We are not convinced that an analogy may be drawn 
     between this legal provision and those who sought to settle 
     in Judea and Samaria, who were neither forcibly ``deported'' 
     nor ``transferred,'' but who rather chose to live there based 
     on their ideology of settling the Land of Israel.
       We have not lost sight of the views of those who believe 
     that the Fourth Geneva Convention should be interpreted so as 
     also to prohibit the occupying state from encouraging or 
     supporting the transfer of parts of its population to the 
     occupied territory, even if it did not initiate it. However, 
     even if this interpretation is correct, we would not alter 
     our conclusions that Article 49 of the Fourth Geneva 
     Convention does not apply to Jewish settlement in Judea and 
     Samaria in view of the status of the territory according to 
     international law. On this matter, we offer a brief 
     historical review.
       7. On 2 November 1917-17 Heshvan 5678, Lord James Balfour, 
     the British Foreign Secretary, published a declaration saying 
     that:

       ``His Majesty's Government view with favor the 
     establishment in Palestine of a national home for the Jewish 
     people, and will use their best endeavors to facilitate the 
     achievement of this object, it being clearly understood that 
     nothing shall be done which may prejudice the civil and 
     religious rights of existing non-Jewish communities in 
     Palestine, or the rights and political status enjoyed by Jews 
     in any other country.

       In this declaration, Britain acknowledged the rights of the 
     Jewish people in the Land of Israel and expressed its 
     willingness to promote a process that would ultimately lead 
     to the establishment of a national home for it in this part 
     of the world. This declaration reappeared in a different 
     form, in the resolution of the Peace Conference in San Remo, 
     Italy, which laid the foundations for the British Mandate 
     over the Land of Israel and recognized the historical bond 
     between the Jewish people and Palestine (see the preamble):

       ``The principal Allied powers have also agreed that the 
     Mandatory should be responsible for putting into effect the 
     declaration

[[Page 17137]]

     originally made on November 2nd, 1917, by the Government of 
     His Britannic Majesty, and adopted by the said powers, in 
     favor of the establishment in Palestine of a national home 
     for the Jewish people, it being clearly understood that 
     nothing should be done which might prejudice the civil and 
     religious rights of existing non-Jewish communities in 
     Palestine, or the rights and political status enjoyed by Jews 
     in any other country. [. . .] 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.

       It should be noted here that the mandatory instrument (like 
     the Balfour Declaration) noted only that ``the civil and 
     religious rights'' of the inhabitants of Palestine should be 
     protected, and no mention was made of the realization of the 
     national rights of the Arab nation. As for the practical 
     implementation of this declaration, Article 2 of the 
     Mandatory Instrument states:

       ``The Mandatory shall be responsible for placing the 
     country under such political, administrative and economic 
     conditions as will secure the establishment of the Jewish 
     national home, as laid down in the preamble, and the 
     development of self-governing institutions, and also for 
     safeguarding the civil and religious rights of all the 
     inhabitants of Palestine, irrespective of race and 
     religion.''

       And Article 6 of the Palestine Mandate states:

       ``The Administration of Palestine, while ensuring that the 
     rights and position of other sections of the population are 
     not prejudiced, shall facilitate Jewish immigration under 
     suitable conditions and shall encourage, in co-operation with 
     the Jewish agency referred to in Article 4, close settlement 
     by Jews on the land, including State lands and waste lands 
     not required for public purposes.''

       In August 1922 the League of Nations approved the mandate 
     given to Britain, thereby recognizing, as a norm enshrined in 
     international law, the right of the Jewish people to 
     determine its home in the Land of Israel, its historic 
     homeland, and establish its state therein.
       To complete the picture, we would add that upon the 
     establishment of the United Nations in 1945, Article 80 of 
     its Charter determined the principle of recognition of the 
     continued validity of existing rights of states and nations 
     acquired pursuant to various mandates, including of course 
     the right of the Jews to settle in the Land of Israel, as 
     specified in the abovementioned documents:

       Except as may be agreed upon in individual trusteeship 
     agreements [. . .] nothing in this Chapter shall be construed 
     in or of itself to alter in any manner the rights whatsoever 
     of any states or any peoples or the terms of existing 
     international instruments to which Members of the United 
     Nations may respectively be parties'' (Article 80, Paragraph 
     1, UN Charter).

       8. In November 1947, the United Nations General Assembly 
     adopted the recommendations of the committee it had 
     established regarding the partition of the Land of Israel 
     west of the Jordan into two states. However, this plan was 
     never carried out and accordingly did not secure a foothold 
     in international law after the Arab states rejected it and 
     launched a war to prevent both its implementation and the 
     establishment of a Jewish state. The results of that war 
     determined the political reality that followed: The Jewish 
     state was established within the territory that was acquired 
     in the war. On the other hand, the Arab state was not formed, 
     and Egypt and Jordan controlled the territories they captured 
     (Gaza, Judea and Samaria). Later, the Arab countries, which 
     refused to accept the outcome of the war, insisted that the 
     Armistice Agreement include a declaration that under no 
     circumstances should the armistice demarcation lines be 
     regarded as a political or territorial border. Despite this, 
     in April 1950, Jordan annexed the territories of Judea and 
     Samaria, unlike Egypt, which did not demand sovereignty over 
     the Gaza Strip. However, Jordan's annexation did not attain 
     legal standing and was opposed even by the majority of Arab 
     countries, until in 1988, Jordan declared that it no longer 
     considered itself as having any status over that area (on 
     this matter see Supreme Court President Landau's remarks in 
     HCJ 61/80 Haetzni v. State of Israel, IsrSC 34(3) 595, 597; 
     HCJ 69/81 Bassil Abu Aita et al. v. The Regional Commander of 
     Judea and Samaria et al., IsrSC 37(2) 197, 227).
       This restored the legal status of the territory to its 
     original status, i.e. territory designated to serve as the 
     national home of the Jewish people, which retained its 
     ``right of possession'' during the period of the Jordanian 
     control, but was absent from the area for a number of years 
     due to the war that was forced on it, but has since returned.
       9. Alongside its international commitment to administer the 
     territory and care for the rights of the local population and 
     public order, Israel has had every right to claim sovereignty 
     over these territories, as maintained by all Israeli 
     governments. Despite this, they opted not to annex the 
     territory, but rather to adopt a pragmatic approach in order 
     to enable peace negotiations with the representatives of the 
     Palestinian people and the Arab states. Thus, Israel has 
     never viewed itself as an occupying power in the classic 
     sense of the term, and subsequently, has never taken upon 
     itself to apply the Fourth Geneva Convention to the 
     territories of Judea, Samaria and Gaza. At this point, it 
     should be noted that the government of Israel did indeed 
     ratify the Convention in 1951, although it was never made 
     part of Israeli law by way of Knesset legislation (on this 
     matter, see CrimA 131/67 Kamiar v. State of Israel, 22(2) 
     IsrSC 85, 97; HCJ 393/82 Jam'iat Iscan Al-Ma'almoun v. 
     Commander of the IDF Forces in the Area of Judea and Samaria, 
     IsrSC 37(4) 785).
       Israel voluntarily chose to uphold the humanitarian 
     provisions of the Convention (HCJ 337/71, Christian Society 
     for the Holy Places v. Minister of Defense, IsrSC 26(1) 574; 
     HCJ 256/72, Electricity Company for Jerusalem District v. 
     Minister of Defense et al., IsrSC 27(1) 124; HCJ 698/80 
     Kawasme et al. v. The Minister of Defense et al., IsrSC 35(1) 
     617; HCJ 1661/05 Hof Aza. Regional Council et al. v. Knesset 
     of Israel et al., IsrSC 59(2) 481).
       As a result, Israel pursued a policy that allowed Israelis 
     to voluntarily establish their residence in the territory in 
     accordance with the rules determined by the Israeli 
     government and under the supervision of the Israeli legal 
     system, subject to the fact that their continued presence 
     would be subject to the outcome of the diplomatic 
     negotiations.
       In view of the above, we have no doubt that from the 
     perspective of international law, the establishment of Jewish 
     settlements in Judea and Samaria is not illegal.

                          ____________________