You’ve been lied to about the West Bank. Here’s the truth.
Anyone who believes concessions will encourage the Palestinians to agree to peace is ignorant of facts and history.
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This is a guest essay written by Dena Tauber, a New York-based attorney who discovered a passion for Israel and Zionism following October 7th.
You can also listen to the podcast version of this essay on Apple Podcasts, YouTube Music, YouTube, and Spotify.
Israel’s critics have a favorite whipping-boy — the so-called Jewish “settlements” in Judea and Samaria (also known as the West Bank) which are actually just towns and neighborhoods developed by Jewish Israelis as places to live.
Regardless of the broader context, the settlements are a convenient scapegoat for Palestinian violence against Jews and the Palestinian refusal to accept Israel’s existence.
In reality, and like so many nonsensical pronouncements made by the international community (and even Jews and Left-wing Israelis) about Israeli policies, focusing on these communities and the behavior of a small percentage of their residents distracts attention from the real (and sole) reason there has not been peace between Israel and the Palestinians — Palestinian rejectionism.
The legality of Israel’s settlements in Judea and Samaria has for years dominated the attention of the international community, as is evident in countless reports of different United Nations bodies, rapporteurs, and resolutions, as well as in political declarations and statements by governments and leaders.
In order to use these communities as a basis for blaming Israel for the failure of the two-state solution, the United Nations, International Criminal Court, International Court of Justice, various Muslim and European governments, Amnesty International, Human Rights Watch, and other NGOs have relied on their go-to “Israel is violating international law” pretext for which they routinely denounce Israel.
Sifting through the rhetoric, an analysis of the history of Judea and Samaria reveals that Israel likely has the best claim to sovereignty than any other potential claimant.
Historically, Jewish roots in the biblical Land of Israel go back for millennia. Even after the Roman conquest and resulting exile, Jews have lived in the land continuously.
Modern Zionism began in the late 19th century, but for purposes of this essay, I am starting at 1917 when the League of Nations entrusted the territory of “Palestine” to Britain for the stated purpose of creating a homeland for the Jewish People. In the resolution of the 1920 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, it said:
“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.”
The Mandate included all of the territory constituting Israel, Jordan, Judea and Samaria, and Gaza.
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 … settlement by Jews on the land, including State lands and waste lands not required for public purposes.”
Importantly, although the Mandate contains safeguards for the religious and civil rights of the non-Jewish inhabitants of the Palestine Mandate, it does not address their rights to sovereignty of any kind. In fact, until 1917 “Palestine” was simply a district of the Ottoman Empire that was included in Southern Syria and ruled from Damascus. Arab nationalism at that time focused on Arab identity, or more specifically Syrian identity, but not a distinct Palestinian identity.
Arab pressure and riots resulted in Winston Churchill issuing the “White Paper” of 1922 which, while reiterating the right of the Jewish People to a national home in Palestine, permanently detached the area of the Jewish homeland east of the Jordan River (constituting 76 percent of the original Mandate territory), with respect to which he made a separate agreement with Emir Abdullah of Transjordan, ultimately establishing the independent Kingdom of Jordan.
This action was not consistent with the Mandate, but the Jews accepted it because (a) they had no choice, and (b) the Jewish connection to the territory East of the Jordan River was more limited and dwarfed by the Jewish connection to the territory West of the Jordan River.
Following World War II and the destruction of European Jewry, the United Nations passed the Partition Resolution of November 29, 1947 (General Assembly Resolution 181(II)), recommending the partition of Palestine into a Jewish state and an Arab state, with a special international status for Jerusalem.
The Resolution could only be implemented with the acceptance of it by the parties. But the Resolution was rejected by the Arabs. Since the Arabs never accepted the Partition Plan, it does not define the boundaries of the State of Israel.
Arguably, the entirety of the territory West of the Jordan is legally part of Israel because that was the Mandate immediately before the failed Partition Plan. Following Israel’s War of Independence in 1948, the Israelis extended their sovereignty over all of the territory that it controlled, which was more than what it had been allocated in the Partition Plan.
In order to bring an end to the war, Israel entered into armistice agreements with its neighboring countries, expressly stipulating with Egypt that “the Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question” and with Jordan and Lebanon that “no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.”
In May 1967, Egyptian President Gamal Abdel Nasser mobilized and sent troops to the Sinai Peninsula and closed off the Straits of Tiran to the passage of ships flying the Israeli flag and ships flying other flags carrying strategic cargoes, in violation of international law.
This was in addition to the previous gross breach of closing the Suez Canal for many years, a canal which was meant to be open to the free passage of ships of all nationalities. Only a few days after the Egyptian troops had been deployed in Sinai, then UN Secretary-General U Thant, acting upon the request of President Nasser, withdrew UN Forces from the Sinai Peninsula.
Israel was ultimately forced to take defensive measures, as it was entitled to do under the United Nations Charter, with a preemptive strike against the Egyptian Air Force on June 6, 1967. Jordan and Syria joined Egypt in attacking Israel on that same day.
Troops supporting the Arab attack arrived from Iraq, Algeria and Kuwait. The Six-Day War ended with Israel’s stunning victory. The Sinai Peninsula, the Golan Heights, the Gaza Strip, Judea and Samaria, and the Old City of Jerusalem all came under Israeli control.
At the conclusion of the Six-Day War, UN Resolution 242 was passed with the aim of establishing the guidelines for a “peaceful and accepted settlement” to be agreed by “the States concerned.” Accordingly, the Resolution provided:
“… the fulfillment of [United Nations] Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of … withdrawal of Israeli armed forces [not necessarily “all armed forces”] from territories [not necessarily “the territories” or “all the territories”] occupied in the recent conflict … [the] termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”
This resolution is often relied upon as a basis for claiming that Israel must withdraw from Judea and Samaria, glossing over the fact that a peace agreement is a prerequisite for withdrawal that Israel need not withdraw entirely and the Palestinians living in Judea and Samaria do not qualify as a state, notwithstanding pseudo “recognition” by various countries.
Some Jewish settlements in Judea and Samaria, such as in Hebron, existed throughout the centuries of Ottoman rule, while settlements such as Neve Yaakov (north of Jerusalem), the Gush Etzion bloc in southern Judea, and the communities north of the Dead Sea were established under British Mandatory administration prior to the establishment of the State of Israel, and in accordance with the League of Nations Mandate.
Judea and Samaria are the cradle of millennia of Jewish history and many of Judaism’s holiest sites, such as the Cave of the Patriarchs in Hebron.
Many contemporary Israeli settlements have actually been re-established on sites which were home to Jewish communities in previous generations. A significant number are located in places where previous Jewish communities were forcibly ousted by Arab armies or militia, or slaughtered, as was the case with the ancient Jewish community of Hebron in 1929.
Shortly after the Six-Day War, Jews began moving back to Judea and Samaria, initially in the Gush Etzion bloc and Hebron. The first settlement to be constructed after the 1967 war was Kfar Etzion, which was actually the reestablishment of a pre-existing Jewish settlement destroyed by the Jordanians in 1948.
Several of the new residents of Kfar Etzion were descendants of the people who fought and died in 1948. In other words, the Jews were not usurping anyone’s land; they were reclaiming land that had been part of Mandatory Palestine and was originally intended as a Jewish homeland.
For more than a thousand years, the only administration which has prohibited Jewish settlement in these areas was the Jordanian occupation administration, which during the 19 years of its rule (1948 to 1967) declared the sale of land to Jews a capital offense. The right of Jews to establish homes in these areas, and the private legal titles to the land which had been acquired could not be legally invalidated by Jordanian occupation, and such rights and titles remain valid to this day.
In short, the attempt to portray Jewish communities in Judea and Samaria as a new form of “colonial” settlement in the land of a foreign sovereign is as disingenuous as it is politically motivated. At no point in history were Jerusalem and Judea and Samaria subject to Palestinian Arab sovereignty. At issue is the right of Jews to reside in their ancient homeland, alongside Palestinian Arab communities, in an expression of the connection of both peoples to this land.
To be sure, not all settlements are legal even under Israeli law. There are illegal outposts that are settled without permits and not sanctioned by the Israeli government.
Palestinian leadership and much of the international community have taken the position that Israel is occupying Judea and Samaria and East Jerusalem, 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.
But what country is Israel occupying?
The previous claimant to sovereignty was Jordan, whose claims were not recognized by the international community. Before that, Judea and Samaria were part of the British Mandate for Palestine which was designated as a home for the Jewish People.
So, who has the best claim over the land? Why would Palestinians, who repeatedly rejected offers of statehood starting in 1936, have a better claim than Israel?
Israel gained control of the territory in a defensive war and is the de facto sovereign until a peace agreement can be achieved.
Immediately after the Second World War, the need arose to draft an international convention to protect civilians in times of armed conflict in light of the massive numbers of civilians forced to leave their homes during the war, and the glaring lack of effective protection for civilians under any of the then valid conventions or treaties.
Accordingly, Article 49 of the Fourth Geneva Convention was adopted; it prohibits the transfer of the occupier’s own civilian population into the territory it occupies. Opponents of Israeli settlements in Judea and Samaria argue that these settlements violate this Article of the Geneva Convention.
This argument fails for two reasons. First, Israel is not an “occupying power” under international law because the territories of Judea and Samaria were never a legitimate part of any Arab state, including the kingdom of Jordan. Moreover, Jordan has since renounced its claims to Judea and Samaria. Accordingly, conventions dealing with occupied territory are not applicable to Israel’s presence in Judea and Samaria.
And, second, even assuming arguendo that Israel was an occupying power, Article 49 prohibits the forcible deportation of an occupier’s own population, as was carried out by Nazi Germany, which forcibly transferred people from Germany to Poland, Hungary, and Czechoslovakia. However, Israelis living in Judea and Samaria move there voluntarily.
International lawyer Eugene V. Rostow, a former dean of Yale Law School and Undersecretary of State, stated in 1990:
“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.”
Similarly, international lawyer and professor Julius Stone, in referring to the absurdity of considering Israeli settlements as a violation of Article 49(6), stated:
“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.)”
The Geneva Convention principle was rendered moot by the signing of the Oslo Accords, a series of agreements between Israel and the Palestinians entered into between 1993 and 1995 which created a framework for governing the relationship between Israel and the Palestinians. They remain valid.
The issue of settlements is one of the core issues to be negotiated in the permanent status negotiations. The original intent was for this arrangement to be temporary, allowing the Palestinian Authority to build institutions, learn how to govern, and build trust with Israel, eventually leading to a final deal.
However, the Interim Agreement did not apply at all to issues reserved for the negotiations on the permanent status agreement, including Jerusalem and the settlements. The interim period elapsed long ago, but a permanent status agreement has not yet been concluded. In this framework, the two parties agreed on a division of jurisdiction in the West Bank into areas A and B (Palestinian jurisdiction) and Area C (Israeli jurisdiction).
Area A is completely ruled by the Palestinian Authority and includes all the major Arab population centers in Judea and Samaria, such as Ramallah, Bethlehem, Hebron Jenin, Tulkarem, and Qalqilya, as well as the Jericho area. In Area A, the Palestinian Authority has full responsibility for internal security (that is, the fight against terrorism), public order (that is, all police activity not related to internal security), and all civil affairs. Entrance to Area A is illegal for Israeli citizens.
Area B constitutes 22 percent of the West Bank. In Area B, the Palestinian Authority controls all Palestinian public order and civil affairs issues. Israel controls internal security issues in Area B, in coordination with the Palestinian Authority. These areas are administratively split between Palestinian Authority “civilian control” over taxes, streets, garbage trucks, and the like, as well as Israeli “security control,” which means that law and order, including anti-terror operations, are conducted freely by the IDF in these areas.
Area C is under complete Israeli control. This includes all the Jewish settlements and the roads that access them (roads which are also used freely by the Arabs who live in areas A and B), as well as IDF installations, areas of security importance, and other non-inhabited areas.
In Area C, Israel controls all internal security and public order issues, as well as civil affairs issues, except that the Palestinian Authority controls all civil affairs issues for the Palestinians that reside in Area C, other than those related to the management of the land.
Israel’s powers and responsibilities in Area C include all aspects regarding its settlements, pending the outcome of the Permanent Status negotiations. Under the Oslo Accords, Israel is legally allowed to build there. Nevertheless, Israel is often accused of settlement expansion against the wishes of both the Palestinians and many in the wider international community.
The two sides to this debate could engage in many hours of brain damage, each attempting to prove that it is on the “right” side of international law. But does it matter?
No, it does not.
The Palestinians as a people are openly committed to being in a permanent state of war with Israel. When Palestinian leader Yasser Arafat rejected Israeli offers for a Palestinian State in 2000 and 2008 — which included 95 to 96 percent of the West Bank, Gaza, and a capital in East Jerusalem (with the second offer also including a portion of the Negev as compensation for the excluded areas — he did not cite the existence of Jewish settlements as a reason for his rejection.
In fact, settlements were never mentioned, since they are not relevant to the Palestinian claim. The primary reason for rejecting these offers was Israel’s refusal to recognize the so-called “right of return” that the Palestinians continue to insist upon. This demand was part of a cynical strategy to undermine Israel from within, as the Arabs sought to repatriate four generations of descendants of those displaced during the war that their Arab friends initiated against Israel and lost in 1948.
This tactic artificially inflated the number of claimants from 750,000 to millions. Arafat understood that Israel would never agree to its own destruction. To divert attention from their rejection of the offers, the Palestinians unleashed waves of violence, resulting in the deaths of thousands of Israelis through suicide bombings, stabbings, car-rammings, shootings, and other acts of terror for which they have become known.
The Palestinians are the only nation that ever said “no” to an offer of independence with international support.
Given the security concerns, establishing settlements in Judea and Samaria makes sense from a security point of view, which Israel has every right to do.
Does Jewish settlement in Judea and Samaria advance the cause of peace between Israel and the Palestinians? No.
Does Jewish settlement in Judea and Samaria hurt the cause of peace between Israel and the Palestinians? Also, no.
The presence of Jewish communities in Judea and Samaria does not impact the pursuit of peace between Israel and the Palestinians. Rather than serving as a hindrance to peace, they hold no significance whatsoever. This is due to the Palestinians explicitly stating that they will not recognize a Jewish state, regardless of its size, adjacent to their territory. They have consistently reiterated this stance, yet the global community continues to disregard their words, attributing to them noble intentions that simply do not exist.
A case in point is that in 2010. Following pressure from the Obama Administration, Israel agreed to a 10-month settlement freeze. Per the White House, the purpose of the freeze was to encourage the Palestinians to “come to the table” and restart peace negotiations. Israel agreed. Of course, the Palestinians did not agree to join negotiations.
Why should they? They already had obtained a settlement freeze for nothing. Anyone who believes concessions will encourage the Palestinians to agree to peace is ignorant of facts and history.
Jewish claims to Judea and Samaria do not abrogate Palestinian claims to the land. However, the Palestinians cannot hold Judea and Samaria hostage indefinitely.
Since October 7, 2023, the Palestinians in Judea and Samaria have made their stance clear. The majority of the population supports Hamas’ genocidal actions on that day and has expressed a desire for similar events to occur again. They are not advocating for peace; rather, they are committed to ongoing conflict until the State of Israel is destroyed.
Their actions have demonstrated that they cannot be trusted to establish an independent state which would not pose an existential threat to Israel. By consistently rejecting offers of peace in exchange for statehood and resorting to terror, they have forfeited any right they may have had to establish an independent state in Judea and Samaria.
Thank you for such an informative piece. The Palestinian leaders have made it clear over and over again,t hey do not want peace, nor do they want to be anywhere near where Jews exist. For the world to think there could be a solution to this problem would be like having an agreement for blacks and the KKK to live peacefully side by side, in the same neighborhood. It's preposterous.
All those who support the two state delusion seek the destruction of the state of Israel. It must be repeated that this failed concept is not a solution that Israel should discuss further.
If the Arabs wish to have peace, they must apologize for the lie of palestinianism and compensate Israel and the Jewish people for their centuries of violence and destruction they have brought the region. Otherwise there is nothing we need to discuss with them.