Hague, Geneva, Palestine, Occupation

From a communication with Howard Grief, author of The Legal Foundation and Borders of Israel Under International Law", commenting on some issues I raised:

Under the Hague Regulations of 1907, the definition of the juridical concept of “occupation” absolutely demands the existence of a previous or ousted sovereign from whom land was captured by a hostile state in war with it. If there was no such sovereign, then there cannot be by definition any belligerent occupation of land in accordance with Article 42 of the Hague Regulations. In such circumstances, neither the Hague Regulations nor the Fourth Geneva Convention would apply to the conquered land after the close of military operations...

In regard to Judea, Samaria and Gaza, their characterisation as Israeli “occupied territory” is wrong because these areas were specifically allotted to the Jewish People for the purpose of reconstituting the Jewish National Home and future Jewish State. This allocation was made under the Franco-British Boundary Convention of December 23, 1920. The provisions of this Convention were implicitly approved by the Council of the League of Nations when it confirmed the Mandate for Palestine on July 24, 1922. There was never any legal allocation of the territory to an Arab state or people. The U.N. Partition Resolution of November 29, 1947 which purported to make such an allocation was illegal in that it violated the then existing Article 5 of the Mandate for Palestine which prohibited the partition of the land. It was also illegal because the proposed partition plan violated Article 80 of the U.N. Charter, the purpose of which was to preserve the existing rights of the Jewish People to all of Palestine under the Mandate instrument, immune from any alteration until a trusteeship agreement could be concluded between the states directly concerned...Jewish rights to the whole country remain inviolable.

...after Israel liberated the territories of Judea, Samaria and Gaza from Jordanian and Egyptian occupation respectively in the Six-Day War, it decided for reasons of demography and future peace prospects not to assert its lawful rights to these lands by applying Israel law to them, but chose instead to apply the laws of war by issuing various military proclamations to that effect, which contravened the existing Israeli constitutional law applicable to Eretz-Israel. This in turn led the whole world to believe that Judea, Samaria and Gaza were indeed subject to the rules of belligerent occupation since that is the natural meaning of what was done by the Government of Israel...The application of the laws of war to the liberated Jewish territories, instead of Israeli law, was done on the egregious advice of then Military Advocate-General, Meir Shamgar...

It is certainly true...that the [Israeli] Supreme Court has ruled repeatedly that the IDF “held territories” of Judea, Samaria and Gaza are governed by the rules of belligerent occupation as set down in the Hague Regulations and Fourth Geneva Convention. However, this did not necessarily mean that the “held territories” were in fact “occupied territories” under international law embodied in the laws of war...Had the Government not voluntarily agreed to the applicability of the laws of war by deliberate choice rather than by strict law, the Court would have found it necessary to adjudicate the issue of the legal status of the “held territories” to determine if they were in fact and law territories under occupation. Alternatively, the Court may have requested the Government of Israel to provide it with a certificate on the legal status of these territories. This was never done. Therefore to this day and despite appearances to the contrary, the Court has never pronounced a definitive legal opinion on the legal status of Judea, Samaria and Gaza preferring to leave this question in limbo for the Government to ultimately decide.

Despite the Court’s reluctance to determine their legal status, the existing constitutional law of Israel, as embodied in the Area of Jurisdiction and Powers Ordinance and the proclamations validated under this law’s umbrella as well as Section 11B of the Law and Administration Ordinance, does assume that Judea, Samaria and Gaza, being indisputable areas of the Land of Israel, legally belong to the Jewish People and hence the State of Israel and thus should be governed by Israeli law rather than by the laws of belligerent occupation...

The International Committee of the Red Cross which argues that the Fourth Geneva Convention applies to Judea, Samaria and Gaza regardless of their legal status misrepresents or distorts the actual meaning of this Convention. As noted above, their stated position is true only while the war or military operations are still taking place. However, once the military phase of the war is terminated, the legal status of the conquered territory then becomes of crucial importance, for under Article 6 of the Fourth Geneva Convention, the latter only continues to apply one year after the general close of military operations in the case of occupied territory for the duration of the occupation. To determine if “occupation” exists to justify the continued application of the Fourth Geneva Convention, one must then know exactly what the legal status of the conquered territory is. Who in fact has the legal right to govern this territory? Is it Jordan, Egypt, the local Arabs of the land, or Israel?

In the particular case of Judea and Samaria, Israel did not occupy Jordanian sovereign territory, but restored that territory to the Jewish People (which includes the State of Israel), to whom it originally belonged as an integral part of the Jewish National Home. Jordan’s acquisition was based on its illegal aggression and conquest of this land in the 1948 War of Independence, which it then illegally annexed on April 24, 1950. On the other hand, Israel’s re-acquisition of the same territory was based on the title it had inherited from the Jewish People who acquired it under international law by virtue of the considered decision of the Principal Allied Powers, who defeated Ottoman Turkey in World War I. That decision was founded on the Allied recognition of the Jewish historical connection with Palestine in both the First and Second Temple periods. In consequence of that recognition, the Allied Powers adopted the Balfour Declaration as the basis for governing Palestine and transformed the Declaration into an act of international law by means of the San Remo Resolution that was then incorporated into the preamble of the Mandate for Palestine. The boundaries of Mandated Palestine included Judea and Samaria, as confirmed by the Franco-British Boundary Convention of December 23, 1920. No title to this land was ever bestowed on the local Arab inhabitants.

In the case of Gaza, this land was never under Egyptian sovereignty and therefore it too cannot be legally designated as “occupied territory”.

...when France regained possession of Alsace-Lorraine in 1918 in World War I from Germany which had earlier acquired it in a war of conquest in 1871 (the Franco-Prussian War), a war provoked by the Prussian Chancellor, Otto Von Bismark as part of his plan to create a united German Empire. When France reconquered Alsace-Lorraine, the territory was not called “occupied Germen territory” even though it had previously been annexed by Germany and remained under German sovereignty for several decades. In like manner, Judea, Samaria and Gaza which historically and legally belonged to the Jewish People both in ancient days and upon the disposition of the Supreme Council of the Principal Allied Powers, on April 24-25, 1920, at the San Remo Peace Conference, should never have been called “occupied Arab territory” or “enemy territory” but rather the liberated areas of the Jewish National Home returned to the bosom of the Jewish People and its assignee, the State of Israel.

The International Committee of the Red Cross has a self-serving interest in describing Judea, Samaria and Gaza as “occupied territories” since this allows it to assume the role of protector of the local Arab inhabitants in the Land of Israel and thus to massively intervene...

Inasmuch as Judea, Samaria and Gaza are not today nor have ever been Israeli occupied territories under international law, Israel is not debarred either by the Hague Regulations or by the Fourth Geneva Convention from sanctioning the building of Israeli settlements in the restored areas of the Jewish homeland. The contention...that Israel has no right to build these settlements is based on the flawed opinion of Theodor Meron that these lands were, for him, amazingly enough, “enemy territory”, rather than areas of the Jewish National Home, a mindset that originated not with Meron himself, but with Meir Shamgar, long before the Six-Day War erupted. This erroneous opinion of Meron was rejected by the Government of Israel at the time he gave it and he then emigrated to the United States. In establishing well over a hundred settlements in the restored areas of the Land of Israel, including the Golan Heights and at least half of Sinai, the Government thereby affirmed by that action alone that those areas could not be considered “occupied territory” but rather were sanctioned by Israel’s Law of Return which applies to the whole of the Land of Israel, not just the State itself...