Not That Clever

On September 24, James Cleverly, the Minister for the Middle East and North Africa, rose in Parliament to respond to MK from Aberavon, Stephen Kinnock), who had secured a debate on "settlement and annexation of the Occupied Palestinian territories" during which he uttered not a few inanities. It last an hour and a quarter.

Cleverly stated the issue is "a sensitive but incredibly important", even "complex". Perhaps being complex, Cleverly was challenged to provide factual replies.

He stated the Britain desires "a ​stable, secure and peaceful two-state solution, with a thriving Israel next door to a thriving Palestine based on 1967 borders, with agreed land swaps, Jerusalem as the shared capital of both states and fair, agreed and realistic settlements for refugees...a two-state solution is the only viable long-term solution for the area...we genuinely believe it is in Israel’s best interests to also have a viable Palestinian state so that it can maintain its desired future as a Jewish democratic state...annexation...would be a violation of international law."

Asked if he woud agree that boycotting Israel if nannexation goes forward "would demonstrate a genuine commitment to the rights of the Palestinian people and international law?", he expressed opposition:

The UK Government have a long-standing position to oppose the boycott, divestment and sanctions movement towards the state of Israel, but more than that, it is better that we prevent annexation from taking place. 

Nevertheless, he indicated that

We give guidance to businesses and ultimately it is a decision for individual companies whether to operate in settlements in the occupied Palestinian territories, but the British Government absolutely do not encourage or support such activities...It was in order to allow consumers to have that choice that in December 2009 the UK Government ​introduced voluntary guidance to enable products from Israeli settlements near the OPTs to be specifically labelled as such.

He then addessed the matter of Jewish communities in Judea and Samaria:

The UK’s position on settlements is also clear. Again, they are illegal under international law and present an obstacle to a sustainable two-state solution. We want to ​see a contiguous west bank, including East Jerusalem, as part of a viable sovereign Palestinian state, based on the 1967 borders. In 2016, the UK supported UN Security Council resolution 2334, which states that Israeli settlement activity “constitutes a flagrant violation” of international law and “has no legal validity”. This is the long-standing position of the UK Government

On the insulting language and incitement in Palestinian Authority textbooks, he reminded that "we have pressed the EU to publish its interim report on Palestinian textbooks. We want it to be addressed at pace and transparently"

MP Kinnock called it "a rich and multifaceted debate" but noted "the UAE deal has not stopped annexation. The settlements continue". He posited that "the illegal settlements are not Israel. They are illegally occupied territory that should belong to the Palestinians, as my hon. Friend the Member for Coventry South (Zarah Sultana) correctly pointed out." and that there is a "need to act against those British companies that are involved in the illegal settlements...It is time for the British Government to step up to the plate. It is time for tangible action...".

Mr. Cleverly should know that England's efforts to thwart Zionism, from the 1921 White Paper to that of 1939 to its post-war diplomatic failures, were not only wrong morally but indefensible legally. All our communities in the land west of the Jordan River are ertainly legal and legitimate. The League of Nations Mandate, which Gt. Britian promoted and voted in favor legislates:

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, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.

That is quite clear.

"Palestine" as an independent state never existed and has no claims, not even under Geneva 1949. Jordan's rule over the territory until 1967 was an illegal occupation. The 1967 war won by Israell was one of self-defense against Arab aggression and no rights can accrue as a result of that illegal action.

Mr. Cleverly, review the historical, political and legal material for the next debate in the House. This article would be helpful. There are others.

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"Palestine" "Occupied" in a Good Sense

The term "occupation" is applied to Israel's administration of Judea and Samaria (and previously Gaza) to denigrate and to malign. It is used pejoratively.

Actually, "belligerent occupation" is a simple technical term in international law meaning territory obtained as a result of armed conflict. It is not that the occupation is inherently belligerent but rather that it came about through hostilities. In the case of 1967, Israel's war was one of self-defense and it had been a legitimate response in the face of Egyptian aggressive acts and intentions as well as those of the Palestine Liberation Organization, founded in 1964, which had begun terror incursions of Israel from January 1965.

Reviewing historical material on the San Remo Conference, the centenary of which is in three months time, I came across this document in which America's Ambassador to Italy reports on his participation at the conference and read the underlined words:

The session was "occupied with [the awarding to Great Britain a] mandate for Palestine" for the purposes of reconstituting the Jewish national home.

So, occupation isn't always a negative.

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Okay, I'll Talk About Occupation

For all Birthright participants, past, present and future, who are worried they may not really be told anything on occupation when in Israel (or were told something on their campuses/from friends and were hoping to learn something to combat what they felt are lies), here's the nitty-gritty:

There is an occupation. Two, in fact. At least.

As a result of non-stop Arab terror throughout the 1950s and 1960s (heard of the fedayeen and the PLO's Fatah, all operational before 1967?), Israel was forced to defend itself in June 1967.  Yes, defend.  The administration of the territories taken in that war is a "belligerent occupation". That's the first occupation.

But don't be fooled.  The term "belligerent" doesn't mean that Israel's administration is belligerent (some will try to fool you and rewrite the definition like this: 'Military occupation occurs when a belligerent state invades the territory of another state'. Israel was not 'belligerent' in the way that is phrased. It was threatened, water route closed off, UN supervisors kicked out of Sinai and Jordan actually invaded Jerusalem and shelled Israeli locations. Oh, and there was no "state of Palestine"). The use of 'belligerent' was simply to indicate that it resulted from a war like in this definition: "belligerent occupation [is] established as a consequence of an armed conflict, that is to say through the conduct of hostilities".  And Israel fought a war that was defensive, against hostile countries.  And it was a just war. And justified. And moral.

Just by the way: "the 1949 Geneva Conventions do not contain a definition of belligerent occupation".

UPDATE: Some claim this - "The Fourth Geneva Convention applies to the West Bank, to the Gaza Strip, and to the entire City of Jerusalem, in order to protect the Palestinians living there." Others point to the fact that the Convention is between High Contracting Parties and as there never was a state called "Palestine", and no legal political sovereignty therein, Israel need protect anybody there but not because they are "Palestinians" but because they are humans who deserve humanitarian rights. What anti-occupationists do is to extend this misrepresentation and use humanitarian law to leverage political rights. That's cheating.

The second occupation could very well be the Arab occupation of Eretz-Yisrael but more on that later.

There is nothing wrong in using "Judea & Samaria".

Judea and Samaria (in Hebrew, Yehuda v'Shomron) is the correct name for the territory that Jordan occupied beginning in 1949 until Israel assumed its administration in 1967.  As regards who is the legal sovereign, there is a dispute. So, okay, it's "disputed territory". Some actually think it is "liberated territory".  For sure it was included in the area of the historic Jewish homeland that was to become the Jewish state as decided by the League of Nations in 1922.

The terms Judea & Samaria date back to Biblical times and appear numerous times in the Old and also the New Testament.  The 1947 partition plan borders of the UN used the terms Judea and Samaria. You can find them in many books from centuries ago.  And if we are discussing names, Throughout the 1920s, the Arabs of the Palestine Mandate requested to be termed Southern Syrians and that "Palestine", actually "Southern Syria" be joined to the French mandate over Syria.

About the use of 'West Bank': when the Kingdom of Jordan (remember, the illegal occupier of the territory, having conquered it in 1948) decided to annex the area, it created the tern 'West Bank'. That's it: April 1950.

Are Judea and Samaria "illegally occupied"?  No, Judea and Samaria are not "illegally occupied".

After the Balfour Declaration, the 1919 Versailles Peace Conference and the San Remo Accords of 1920, the League of Nations' decision to create the Mandate for Palestine recognized the Jewish right to settle and live in Judea & Samaria. Yes, here in Article 6:

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, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.

And do not forget, the Mandate assured that recognition be given 

to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;

Jordan denied Jews the right of living in Judea and Samaria after the Mufti-inspired pogroms of the 1920s and 1930s and then the 1948 war ethnically cleansed the area of thousands of its of its Jews, some families having resided therein for centuries, as in Hebron and Jerusalem's Old City.  Israel's is the most valid claim to the area.

Let's recall that the Oslo Accords established three geographical areas of jurisdiction in Judea and Samaria  – A, B and C – until a Israeli-Palestinian peace accord could be signed. Those accords did not prohibit Jews residing in Judea and Samaria?  Can you imagine Israel banning Arabs from living in Israel?

Let us borrow these conclusions:

Attempts to present Jewish settlement in ancient Judea and Samaria (the West Bank) as illegal and "colonial" in nature ignores the complexity of this issue, the history of the land, and the unique legal circumstances of this case.

Jewish communities in this territory have existed from time immemorial and express the deep connection of the Jewish people to land which is the cradle of their civilization, as affirmed by the League of Nations Mandate for Palestine, and from which they, or their ancestors, were ousted.

The prohibition against the forcible transfer of civilians to territory of an occupied state under the Fourth Geneva Convention was not intended to relate to the circumstances of voluntary Jewish settlement in the West Bank on legitimately acquired land which did not belong to a previous lawful sovereign and which was designated as part of the Jewish State under the League of Nations Mandate.

Bilateral Israeli-Palestinian Agreements specifically affirm that settlements are subject to agreed and exclusive Israeli jurisdiction pending the outcome of peace negotiations, and do not prohibit settlement activity.

Judea and Samaria also possess security value as strategic military requirements.

The area encompasses the southern and northern suburbs of Jerusalem and those to the east of Tel Aviv and the Jordan River to its west.  It includes Israel's central mountain range, and at 1,100 meters above sea level, it overlooks Israel’s largest population center in Tel-Aviv, as well as Israel’s only international airport and as far south as Ashkelon and north to Hadera.

And you should know that Judea and Samaria includes approximately 21% of all territory west of the Jordan River which is a land mass of 3,438 square miles (5,500 square km).  Its length (North-South) is approximately 79 miles (125 km) and varies from 19-34 miles (30-55 km) wide (East-West). Approximately 8% of Judea and Samaria has been developed including all Israeli and Palestinian-Arab development. The built up areas of Israeli settlements cover approximately 1.7 percent of all the land there.

If you have been told there are 'apartheid roads' in Judea & Samaria, there aren't.  The roads are traveled by all, Jews and Arabs.  But, yes, when there is an upsurge in terror and other forms of Arab violence, there will be restrictions.  In the almost 40% of Judea & Samaria that is under the control of the Palestinian Authority, it is illegal for Jewish Israeli citizens to enter or use those roads.

Have I occupied your attention?

There's more to come.

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On Law During Beliigerent Occupation

Israel's High Court for Justice handed down its decision on April 5, 1983 in the matter of HCJ 69/81 Aita v. Regional Commander of Judea and Samaria.

Arab petitioners who carried on various businesses in their respective regions challenged the validity of enactments imposing excise duty on local manufacturers in Judea and Samaria and on goods and services in the Gaza Strip, along with maintaining accounting procedures. These had been levied following the introduction of Value Added Tax in Israel.

Their main submissions were (a) since the Regions where the Petitioners live and work were occupied territory. Article 43 of the Hague Regulations required the Regional Commander to respect existing law unless the circumstances rendered it absolutely impossible. Such circumstances did not obtain in the Regions; (b) under the said Article, all enactments not designed to promote public order and safety were forbidden, whatever the purposes thereof; (c) Article 48 permits the Military Government only to adapt the collection of taxes to existing law and therefore does not give it power to enact new legislation even if it is for the benefit of the Region and its local population.

In the end, the High Court for Justice ruled:

A. (1) The basic norm on which the structure of the Israeli government in Judea, Samaria and the Gaza Strip is built, is the norm of military government.

  (2) The authority of such government is temporary and it shall continue in power as long as it is effective.

  (3) On assuming authority and as long as it continues, the military government occupies the place of the central government and its local authorities that ruled in the region, and concentrates in its hands every power, right and duty of such central government under the existing law in the Region, subject to such changes as the establishment of the military itself involves and the restrictions imposed by the laws of war.

  (4)  The authority of the military government is not limited to implementing the local law. It may translate its powers and directives in terms of security enactments subject, however, to the rules of the laws of war.

...C. (1) The acts of the occupying power derive their force and validity from customary international law which is embodied in international conventions and partly remains in the form of common law as reflected in the judgments of international or national judicial tribunals, in the practice of nations and in legal literature.

  (2) The latter is not merely interpretative of the international conventions which codify customary rules, it may also serve as an independent source evidencing general practice accepted as law.

  (3) When the High Court examines the question of the law as to whether there has been an act of omission or commission conflicting with public international law, it must differentiate between customary and conventional international law, and make a distinction between the two.

  (4) Customary international law is automatically incorporated into Israeli law, and becomes part of it except when it is in direct conflict with enacted Israeli law, in which case, Israeli law takes precedence.

  (5) Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force.

  (6) The legal principles embraced by the Supreme Court on subjects arising in the occupied territories are those of customary international law which gives force also to the local courts in the occupied territories according to Article 43 of the Hague Regulations, adopted in the security legislation.

...E. (1) The Addendum to the Fourth Geneva Convention of 1907 (Hague Regulations) expresses customary international law in the framework of the laws of war.

  (2) The convention contains no express prohibition on the imposition of taxes by an occupying power. The ramifications arising from Article 48 of the Addendum to the Convention should not be examined according to the narrow limits resulting from the wording of the article - which does not enable reaching definite conclusions regarding the permissible limits of taxation. But the subject should be examined in light of the quality of the military regime and its obligations, and in light of the responsibilities towards the areas which it controls.

  (3) Article 49 opens the door to the imposition of additional payment on the populace: there are no restrictions on the frequency of the levy; no restrictions on the reasons for its imposition, the manner of its collection, its scope, the individual rates that shall be determined, or resulting associated features; but there is a restriction regarding the purpose of the levy, and other restrictions lacking real significance according to Article 51.

  (4) Articles 48 and 49 of the Hague Regulations have the sole purpose of limiting the scope of responses in the event that either of two situations arises: One, the collection of taxes by the military regime that are intended for the needs of the State, and two, the imposition of forced levies. Should either of these two actions take place, the military regime will be restricted in regards to methods of implementation and disposition of income, as detailed in the Hague Regulations.

  (5) Regarding the implementation of the payment to be made: The amount of the debt shall be determined according to the normal rules of assessment (how much to be collected) (from whom to collect). The debit is not rigidly fixed, but is flexible to no small degree and can be fixed according to existing conditions. In this matter there is no logic in applying the same criterion to a recently established military government and to a military government that has been in charge of an area with all its attendant civilian problems for more than ten years.

  (6) A forced levy by the military is clearly a means of compulsion expressed by a forced collection of cash meant to flow directly to army coffers, with no relationship or resemblance to taxes for civilian purposes.

F. (1) The military regime does not have the right to impose taxes on the inhabitants of the occupied territories and divert those taxes to the treasury of the state in whose name it acts.

  ...(4) There is no basis to the argument that a general rule of customary international law has developed, forbidding totally and absolutely and for any reason whatsoever, all military legislative enactments imposing new taxes. On the other hand, there is no reason to conclude that the matter of new taxes is left to the sole discretion of the military regime. [p. 203].


JUSTICES
Shamgar, Meir Primary Author majority opinion
Bejski, Moshe majority opinion
Shilo, Yitzhak

With What Is The State Department Occupying Itself?

From US State Department's Spokeswoman Heather Nauert's Press Briefing on January 2, 2018

QUESTION: I’m not asking you to. But do you still – does the administration believe that the West Bank is occupied by Israel?
MS NAUERT: I can only say that our position has not changed. Our position on that hasn’t changed.
QUESTION: Well, does that mean that – does that mean that you still regard the West Bank as being occupied?
MS NAUERT: Matt, I can just tell you our position hasn’t changed. I’m going to be very careful with the words because anything related to this region, as many others --
QUESTION: Exactly.
MS NAUERT: -- is extremely sensitive.
QUESTION: Exactly.
MS NAUERT: Our position has not changed, and I won’t budge from that.
QUESTION: Okay. At some point it would be nice to find out exactly what that position is. You shouldn’t be afraid – precisely because it is so sensitive, you shouldn’t be afraid, unless you’re embarrassed by what the policy is. Not you personally, but whoever. You shouldn’t be afraid to say what it is instead of just saying it hasn’t changed.
MS NAUERT: I don’t think – Matt, as you have seen, when America speaks about a matter, it is taken very seriously.
QUESTION: I know.
MS NAUERT: And so that is why it’s important for the United States to be careful with its words. And you may not get all the words that you were hoping to get, but I’m going to be careful with the words. Okay?
QUESTION: Okay. Well, does that include tweeting stuff about “little Rocket Man” and things like that?
MS NAUERT: Matt.
QUESTION: Be careful with your words? Or “fire and fury” is going to rain down on North Korea?
MS NAUERT: I’m not even going to go there, Matt. Okay?
QUESTION: If you’re saying that the position hasn’t changed, why won’t you just state the position?
MS NAUERT: Michele, the position hasn’t changed. I’m not going there, okay? You’ve got all --
QUESTION: Just – okay.
MS NAUERT: That’s it on that. Okay? Let’s move on.

So, is Judea and Samaria "occupied"?

P.S.  It is, but quite legally, as a result of Israel's defense against armed aggression.  It is termed "belligerent occupation" which means that it has occurred as a result of hostilities. It does not mean the occupation is illegal:

The term "belligerent occupation" is frequently used to describe the establishment of military government in enemy territory (p. 2 note 5)

As we all know:

Israel refuses to acknowledge the Convention's de jure application to any of the Occupied Territories. Israel has, however, said it will comply de facto with the Convention's humanitarian provisions in administering the West Bank and Gaza (but the applicable provisions have never been specified).

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