Preserving a Legal Inheritance: Jewish Settlement Rights in the "Occupied Palestinian Territories"

(Law Society of Scotland) Gerald Adler - Israel's presence on the West Bank dates from the 1967 Six-Day War. Taking strategic pre-emptive defensive action consistent with UN Charter article 51, Israel repelled a planned armed attack by the united forces of Egypt, Syria and Jordan. Neither conventional nor customary international law requires Israel to withdraw from territory captured in a self-defense war until she and her opponents conclude a peace treaty. Israeli settlements barely account for more than 2% of the land area captured in 1967. As a result of the IDF troop withdrawal in accordance with Oslo II, Fatah and Hamas currently exercise personal jurisdiction over approximately 97% of the Arab population, as they do in respect of over 65% of the West Bank territory. Israel has an independent legal claim to occupy, and settle in, the West Bank territory, which can be traced through a number of international legal instruments. Article 6 of the Palestine Mandate of 1922 imposed a positive obligation on the British Mandate "to facilitate Jewish immigration under suitable conditions and shall encourage...close settlement by Jews on the land, including State lands and waste lands not required for public purposes." The Mandate has never been formally amended or repealed - and an undistributed part of the corpus of the trust continues to exist. The legal right of sovereignty over that unappropriated portion of the West Bank formerly held under Jordanian control remains in abeyance and the right thereto is in dispute. Until this issue is resolved, the Jewish people still have a legal right of settlement in that territory.

2009-12-21 09:18:13

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