Illegitimate "Illegitimacy"

Taken Question at the June 16, 2011 Daily Press Briefing

Office of the Spokesperson
Washington, DC

Q: What is the current U. S. policy on Israeli settlements?

A: The position of the United States on Israeli settlements has not changed and will not change. Like every American administration for decades, we do not accept the legitimacy of continued settlement activity. President Obama's recent speech offered our views on the way forward.

A. It has changed, see Ronald Reagan (and here)

B. It can change.

C. There is nothing "illegitimate" or even "illegal" about a Jew residing in the area of the Jewish National Home.

The decisions of the 1919 Versailles Peace Conference, the 1920 San Remo Conference, the articles of the League of Nations Palestine Mandate 1922-23, especially 6, and the Anglo-American Convention of 1924-1925 grant full international legality and recognition for Jews to reside, develop and engage in "close settlement" in all the territory, at the least, between the Mediterranean Sea and the Jordan River, regardless of any political arrangements in that area.


More to come.


1.  Among the legal scholars who dispute this view is Stephen M. Schwebel.51 Schwebel, a judge of International Court of Justice and Professor of International Law at Johns Hopkins University makes three distinctions specific to the Israeli situation that show the territories were seized in self-defense and thus Israel has more title to them than the previous holders. Professor Julius Stone also writes that ”Israel's presence in all these areas pending negotiation of new borders is entirely lawful, since Israel entered them lawfully in self-defense.”63


Julius Stone referred to the absurdity of the claim that establishing settlements violate Article 49(6): "We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus 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 exclude so tyrannical a reading of Article 49(6)."64

...Israel argues that its settlement policy is consistent with international law, including the Fourth Geneva Convention, while recognizing that some settlements have been constructed illegally on private land.66 The Israeli Supreme Court has ruled that the power of the Civil Administration and the Military Commander in the occupied territories is limited by the entrenched customary rules of public international law as codified in the Hague Regulations and Geneva Convention IV.676869 In 1998 the Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper".70 It concludes

International law has long recognised that there are crimes of such severity they should be considered "international crimes." Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions.... The following are Israel's primary issues of concern [ie with the rules of the ICC]: The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.

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2. From Eli Hertz:

Professor, Judge Stephen M. Schwebel, past President of the International Court of Justice (ICJ) states the following facts:

"The facts of the June 1967 'Six Day War' demonstrate that Israel reacted defensively against the threat and use of force against her by her Arab neighbors. This is indicated by the fact that Israel responded to Egypt's prior closure of the Straits of Tiran, its proclamation of a blockade of the Israeli port of Eilat, and the manifest threat of the UAR's [The state formed by the union of the republics of Egypt and Syria in 1958] use of force inherent in its massing of troops in Sinai, coupled with its ejection of UNEF.

"It is indicated by the fact that, upon Israeli responsive action against the UAR, Jordan initiated hostilities against Israel. It is suggested as well by the fact that, despite the most intense efforts by the Arab States and their supporters, led by the Premier of the Soviet Union, to gain condemnation of Israel as an aggressor by the hospitable organs of the United Nations, those efforts were decisively defeated.
"The conclusion to which these facts lead is that the Israeli conquest of Arab and Arab-held territory was defensive rather than aggressive conquest."

Judge Sir Elihu Lauterpacht wrote in 1968, one year after the 1967 Six-Day War:

"On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreement by attacking the Israeli-held part of Jerusalem. There was no question of this Jordanian action being a reaction to any Israeli attack. It took place notwithstanding explicit Israeli assurances, conveyed to King Hussein through the U.N. Commander, that if Jordan did not attack Israel, Israel would not attack Jordan.

"Although the charge of aggression is freely made against Israel in relation to the Six-Days War the fact remains that the two attempts made in the General Assembly in June-July 1967 to secure the condemnation of Israel as an aggressor failed. A clear and striking majority of the members of the U.N. voted against the proposition that Israel was an aggressor."


Israel Has the Better Title to the Territory of What Was Palestine, Including the Whole of Jerusalem

International law makes it clear: All of Israel's wars with its Arab neighbors were in self-defence.

Professor, Judge Schwebel, wrote in What Weight to Conquest:

"(a) a state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense;
"(b) as a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense;
"(c) 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.

"... as between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt."


"No legal Right Shall Spring from a Wrong"

Professor Schwebel explains that the principle of "acquisition of territory by war is inadmissible" must be read together with other principles:

"... namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State."
Simply stated: Arab illegal aggression against the territorial integrity and political independence of Israel, cannot and should not be rewarded.
Professor Julius Stone, a leading authority on the Law of Nations, stated:
"Territorial Rights Under International Law.... By their [Arab countries] armed attacks against the State of Israel in 1948, 1967, and 1973, and by various acts of belligerency throughout this period, these Arab states flouted their basic obligations as United Nations members to refrain from threat or use of force against Israel's territorial integrity and political independence. These acts were in flagrant violation inter alia of Article 2(4) and paragraphs (1), (2), and (3) of the same article."
Thus, under international law Israel acted lawfully by exercising its right to self-defence when it redeemed and legally reoccupied Judea and Samaria, known also as the West Bank.


Various opinions.
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Some of my previous posts:

Here.

Here.

Here.

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On Scobie:

Geneva convention IV is described in La Croix rouge internationale, by Henri Coursier [Paris: PUF, Que Sais-Je 1959], pp 42-43:


"The 4th Convention is new in the law of Geneva. It "completes" the dispositions of the Hague law on the protection of civilians in time of war. . . . It [Geneva IV] principally forbids:
a) Harm to the lives and bodily integrity of human beings, notably torture. . . cruel treatments. . .
b) hostage taking. . .
c) deportations;
d) harm to the dignity of persons, notably humiliating and degarding treatments and discriminatory treatment based on . . . race, color, nationality, religion. . . .sex. . .
e) [sentences and executions not approved beforehand by a regular court {here I summarize}]"

Therefore, of the five classes of action forbidden by Geneva IV, one is deportations [same word in French]. There is no hint here that persons are forbidden to move across a border of an occupied country in order to live on the other side of that border. This was the ICRC's own interpretation of Geneva IV, art 49, as of 1959. The later interpretations of the ICRC, of Scobbie, and of Hansell were purely meant to strike at Israel. The word "transfer" in Geneva IV, art 49, does not apply to non-compulsory, voluntary migration or movement.


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