On Lubell's Legal Opinion on "Occupied Territories"

I had sent this paper, "Key issues in the Israeli-Palestinian conflict from the viewpoint of international law: prepared for the independent panel appointed to review the
impartiality of the BBC's coverage of the conflict" from February 2006, composed by one Noam Lubell, to a good friend for review.

Noam stems from B'tselem:

Noam Lubell, a spokesman for B'Tselem, an Israeli human rights group that brought European diplomats here for meetings with officials of drought-stricken Palestinian towns, said the settlements were just part of the problem...''The water issue is not one of the settlers versus the Palestinians, but of Israel versus the Palestinians,'' said Mr. Lubell...

B'tselem is really a bad-news type of outfit. Radical and progressive, they portray themselves as caring for human rights when only Arabs merit their full and undivided concern. I wrote a piece attacking them back on August 15, 2002 in The Jerusalem Post entitled, "The 'human rights' inhumanity". This caused Jessica Montell to respond on Sept. 9. And this recent problem. But back to Lubell.

In August 2008, Noam, now Lecturer, Law Faculty, Irish Center for Human Rights, National University of Ireland will be teaching The International Laws of Armed Conflict course, described as:

This course aims to provide a detailed acquaintance with the international laws governing armed conflicts. Topics covered will include the resort to force, rules on conduct of hostilities, treatment and status of prisoners, the laws of occupation, enforcement mechanisms, and the relationship with human rights law. The legality of the resort to force in Afghanistan and Iraq, and the applicability of the Geneva Conventions to persons detained in the US "war on terror" are prime examples of the centrality of international law to current affairs. The course will look at these and other situations, such as the Israeli-Arab conflicts, and provide the necessary understanding of applicable rules of international law.

In 2005 he was a Lecturer in International Law, University of Essex.

Gets around, doesn't he?. (*)

Anyway, here's the response from my friend who himself will be shortly publishing a major book on the issues:

Thanks for sending me the 32-page legal brief of Noam Lubell, Senior Researcher of the Human Rights Centre, at the University of Essex, U.K. I read it with interest, particularly the sections dealing with Israel's alleged "occupation" of Judea, Samaria and Gaza and the related questions of annexations and settlements.

My opinion is that Lubell's analysis is deeply flawed and based upon the general sentiment current among Israel's legal elite that Israel is an Occupying Power subject to the rules governing occupied territories under the Fourth Geneva Convention of 1949 and the Hague Regulations of 1907.

Despite the fact that Lubell takes comfort in saying this is the majority opinion of "leading commentators including Israelis, the International Committee of the Red Cross, UN bodies and the International Court of Justice" it is, nevertheless, the wrong opinion that has done enormous harm to Israel's standing in the world ever since the end of the Six-Day War in 1967. Lubell also pretends to be neutral on all the questions he discusses (armed resistance against the occupier, war crimes, targeted killings, etc.) but he is just one more anti-Israeli critic who perceives fault in everything Israel does to defend itself against Arab terrorism and violence. It is not surprising that his legal brief was vetted and approved by another arch-proponent of Israel's alleged "occupation" Professor David Kretzmer.

I wish to deal here with only one aspect of his analysis concerning the definition of occupation. In reading his legal brief, I immediately detected that he does not give the exact definition of the term, just as, you will recall, Professor Ruth Lapidoth did not do when she appeared before a Knesset committee more than a year or so ago. Lubell correctly quotes the text of Article 42 of the Hague Regulations, but he fraudulently omits the most crucial element of the article which is found not in the text itself but in the heading of the section under which Article 42 appears and which refers to the "territory of the hostile state".

For your convenience, here is the exact heading: "Section III – Military Authority Over Territory of the Hostile State". The heading for Section III covers Articles 42 to 56 respectively and classifies their nature or content as do the headings for Section I and Section II and the chapters included in these sections. It is important to stress that the heading for Section III is not there merely for decorative purposes, but conveys a substantive meaning, not only for Article 42 which it modifies and clarifies, but also applies to all other articles in the section. This heading is then followed by the text of Article 42 which reads the way Lubell put it. As you can see, Lubell does not indicate in his definition of occupation, the words referring to the territory of the hostile state, i.e. the territory of the sovereign state that is alleged to be occupied.

In interpreting the text of a treaty, such as the Hague Regulations which represent an annex to the Fourth Hague Convention Respecting the Laws and Customs of War on Land, recourse may be had, according to Article 31 of the Vienna Convention on the Law of Treaties, to the context to be given to the terms of the treaty and in light of the treaty's objective and purpose. Based on this general rule of interpretation, the term "territory" as used in Article 42 of the Hague Regulations can only refer to the "territory of the hostile state" over which a hostile state has assumed military authority, as indicated by the heading for Section III and if further evidence is needed, by Article 55 of the Regulations which refers to the "territory of the hostile state", not merely to "territory" in a general or abstract sense.

In the context of the Six-Day War, the Israel Defence Forces is "the hostile army" and if the Hague Regulations truly apply, then the territory the IDF is alleged to have "occupied" had to be the sovereign territory of Jordan (in the case of Judea and Samaria) or the sovereign territory of Egypt (in the case of Gaza). However, as you well know, Jordan was never considered the legitimate sovereign of Judea and Samaria nor Egypt of Gaza. Therefore the Hague Regulations, as well as the Fourth Geneva Convention do not apply to these territories since both of these treaties deal with "occupied territories" belonging to a foreign sovereign and neither Jordan nor Egypt were the recognised sovereigns of the territories in question under international law.

Lubell also conveniently does not take into account Israel's own rights to these Jewish territories under international law that evolved during and after World War I and which rights are still extant today.

Lubell is indeed a sad reflection of most of the academic jurists in Israel, Europe and the United States who have slammed Israel for "occupying" territory that, contrary to what they allege, does not belong to the Arabs but only to State of Israel as the agent and assignee of the Jewish People, from whom it inherited those rights on May 15, 1948.

What is troubling about Lubell's view and presentation on the issue of occupation is that, according to the introductory comments of his legal brief, it was "prepared for the independent panel appointed to review the impartiality of the BBC's Coverage of the Conflict". Now, thanks to Lubell, the BBC, a notorious anti-Israel baiter, can gleefully continue to call Judea, Samaria and Gaza, "occupied territories" without worrying about further protest from "the independent panel". Good work Noam Lubell! You have given Israel's enemies and detractors, including the advocates of international humanitarian law and human rights law, exactly what they wanted to hear from you!

Sincerely,

Howard

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(*) Noam Lubell
Room 205, Irish Centre for Human Rights Direct line: 492065 Extension: 2065
noam.lubell@nuigalway.ie