In New York Times, Tony Judt Rules on Jewish Settlements’ Legal Status

Tony Judt, a British-born history professor and director of the Remarque Institute at New York University, is perhaps best known in Middle East circles as a fierce opponent of a country for Jews. His antipathy toward Israel is evidenced by articles* in which Judt calls Israel an “anachronism” and appeals for its dismantlement as a Jewish state. In a 2006 Op-Ed in the New York Times, he defends the Walt and Mearsheimer claims of a pro-Israel lobby that governs American foreign policy and shuts down free speech — claims based on distortions and errors, reminiscent of the anti-Semitic conspiracy theories of a Zionist Occupied Government and the infamous forgery, Protocols of the Elders of Zion.

In a new Times Op-Ed entitled “Fictions on the Ground,” (June 22, 2009), Judt promotes his own fiction about Jewish settlements, with the conclusion that they are illegal under international law. 

The problem is that Judt provides no real evidence for his legal conclusion. He invokes Article 47 of the Fourth Geneva Convention which he incorrectly claims “explicitly prohibits the annexation of land consequent to the use of force” and Article 2(4) of the United Nations Charter which he wrongly says repeats this.

In fact, Judt misrepresents these articles. Neither outlaws the occupation or annexation of territory gained through the lawful exercise of self-defense.

Article 47 of the Fourth Geneva Convention states:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

The article addresses the rights of residents in territories annexed or occupied. It does not address the legality of that occupation or annexation.

Article 2(4) of the United Nations Charter states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

It was Jordan — not Israel — that used the threat of force against Israel’s territorial integrity. Israel gained control of the West Bank in a lawful exercise of self-defense. Moreover, Jordan had illegally annexed the West Bank in 1950, a move that was not recognized by any country, except for Pakistan and Great Britain. This article therefore is not applicable to the case of Israeli settlements, which does not threaten the territorial integrity or political independence of any existing state.

Article 80 of the same United Nations Charter, however, is applicable. It states:

nothing in the [U.N. Charter’s chapter on the administration of Mandate territory] shall be construed . . . to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments. (This updated version of the quote corrects an earlier typographical error.)

That would include the British Mandate’s granting the right to the Jewish people to settle in the whole of the Mandated territory. Article 6 of the Mandate encouraged “close settlement by Jews on the land, including State lands not required for public use.”

Regardless of one’s views regarding the political advisability of settlements, the facts are the facts. Professor Stephen Schwebel, former judge on the Hague’s International Court of Justice (1981-2000) distinguished between territory acquired in an “aggressive conquest” (such as Japanese conquests during the 1930s and Nazi conquests during World War II) and territory taken in a war of self-defense (for example, Israel’s capture of the West Bank and the Gaza Strip in 1967 war). He also distinguished between the taking of territory that is legally held by another nation (such as the Japanese occupation of Chinese territory and the Nazi Germany occupation of France, Holland, Belgium and other European lands) as opposed to the taking of territory illegally held. The latter applies to the West Bank and Gaza, which were never the territory of a High Contracting Party; the occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate which encouraged Jewish settlement of the land. Regarding Israel’s acquisition of territories in the 1967 war, Schwebel wrote:

Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. (“What Weight to Conquest,” American Journal of International Law, 64 (1970).

The late Professor Julius Stone-considered one of the premier legal theorists -maintained that the effort to designate Israeli settlements as illegal was a “subversion. . . of basic international law principles.”

Judt pays no heed to fact-checking — making errors from the year of Rabin’s assassination (which the Times has had to correct in later editions) to the relative populations of Tel Aviv and settlements to a wildly inaccurate characterization of Bar Ilan University to the glaring errors on international law. The question is why the New York Times has chosen to feature an outspoken partisan and ideologue — who is neither an international legal expert nor, apparently, a meticulous researcher — to act as an arbiter on the legality of settlements?

* (For example: “Israel the AlternativeNew York Review of Books;  “Jewish State Has Become an Anachronism” , Los Angeles Times; “The Country That Wouldn’t Grow UpHa’aretz ).

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