The Right to Settle in Occupied Land

The Right to Settle in Occupied Land

When someone mentions the word “settlements”, immediately comes to mind the Israeli settlements in the Gaza Strip, Jerusalem and the West Bank also known by its biblical name Judea and Samaria.

Although many conflicts around the world have resulted in military occupations and settlements of the occupying power’s citizens in occupied areas, it seems that the world has a special interest in the Israeli settlements because they are viewed as the obstacle to peace in the Middle East and the rest of the world.

Today there are about a dozen military occupations around the globe such as the Turkish takeover of the northern portion of Cyprus; the occupation of the Tibet by China and the more recent occupation of Crimea and the Eastern part of the Ukraine – Donetsk Oblast and Luhansk Oblast - by Russia.

On a Personal Note

Regarding the Israeli occupation, the referenced five texts chosen from the NYU Library (See References) are clearly biased and looked to elicit only one conclusion from the reader. These opinions are known, often repeated by the media but frequently do not stand to real scrutiny. I tried to bring the “other side” to have a real discussion on the subject and maybe arrive at a somewhat truthful conclusion which I believe is the goal of this academic exercise.

The Israeli Military Occupation of the West Bank, East Jerusalem and the Gaza Strip

The Origin of the Occupation

On November 29, 1947, the United Nation voted the partition between Jews and Arabs, of what was left of the Palestine Mandate after the Kingdom of Transjordan was created in 1946. While the partition was accepted by the Jews, it was rejected in mass by the Arabs who vowed to destroy the newborn state.

Israel declared its independence on May 1, 1948. During the same year, the new State fought the War of Independence against Lebanon, Syria, Iraq, Jordan, Egypt and irregular armies and volunteers from Sudan and other Arab countries together with Arabs within the country led by the Mufti of Jerusalem. Over 1% of the Jewish population died in that war.

Interestingly, the Arabic word used by the Arabs for the creation of the State of Israel is Nakbah or “calamity”, a calamity, it must be pointed out, they brought on themselves by not accepting the partition.

Nonetheless, instead of being overrun by the overwhelming Arab armies, after over one year of fighting, the Arab countries started to sign armistice agreements with Israel. The first was Egypt in February 1949 and the last was Syria on July 20 of the same year. The military positions held by the respective armies when the cease-fire was declared was used to draw the 1949 armistice lines and what it is called today, the “green line”.

During the Independence war many Arabs who lived in and out of the partition areas fled to other areas and to other countries such as Lebanon, Syria and Jordan. Jewish communities that existed on the Arab armies’ side of the green line were either massacred, such as Gush Etzion, or evacuated, such as the Jewish Quarter of the Old City of Jerusalem. The ancient Jewish communities in Hebron, Bethlehem and Gaza were extinguished.

In the aftermath of the war, Egypt had control of the Gaza Strip and Jordan controlled the Eastern side of Jerusalem and the West Bank which it annexed in 1950. The annexation, however, was widely denounced by the Arab League as illegal and declared Jordan only a temporary Trustee until a resolution of the conflict could be reached.

In 1967, in response to a massing of troops along its Egyptian, Jordanian and Syrian borders, Israel opened a preemptive attack that launched the Six Day War. Israel crossed the green line and conquered the West Bank, East Jerusalem and Gaza establishing a military occupation in these areas.

Jews then started to resettle former Jewish communities such as in the Jewish Quarter in the Old City of Jerusalem, Gush Etzion, Hebron, Kfar Darom, Shimon Hatsadik, Neve Yaakov and Atarot.

The Legal Regimen in the West Bank

The Israeli government and its Supreme Court treated Israel’s occupation as subject to the rules of international public law governing “belligerent occupation” by a military government.  The supreme authority for the Israeli Military government in the occupied areas was and continues to be to this day, a military commander (an IDF officer) whose official title is “Commander of IDF Forces in the Area” ^[1].

The exercise of this governmental and administrative authority includes maintaining and enforcing existing local law (i.e. the law that was in force in the West Bank prior to the war) and all new legislation promulgated by the IDF Commander^[2].

According to Article 43 of the Annex to the IV Geneva Convention, the occupant power “shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”^[3].

To this day, the law in force in the West Bank is Jordanian law as it was enforced in 1967.

That is why it was interesting to read Weinstein’s article on Child Labor in Israeli Settlements. The article promotes a Human Rights Watch report regarding the “employment of Palestinian children in Israeli settlements, particularly in the agricultural sector.” However, the article cites Israel’s amendment to its Youth Employment Law and accuses it for not “equally applying the law to Palestinian children working in the settlements”. This is absurd, since Israel is forbidden by international law to apply its own laws to the occupied areas^[4]. The article also cites children “as young as eleven years old who earn around $19 for a full day of working in the settlement agricultural industry”. This is not at all uncommon. In fact, the State of Oregon, in the United States, establishes rules for agricultural workers young as nine years old!^[5] Weinstein then goes on to ICESCR Committee recommendations to reduce Arab Israeli and Bedouin dropout, and enforce the minimum age for workers which have nothing to do with settlements since the treaties Israel signs are only valid for Israel proper and cannot be applied in any occupied territory.

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