A Return to the Hansell Memorandum?

From a State Department Press Briefing conducted on March 1, 2021 by Ned Price, Department Spokesperson:

QUESTION: Just briefly on Israel and Palestine. Has the State Department reversed the – Mr. Pompeo’s determination that the settlements in the occupied territories are not necessarily illegal?

MR PRICE: So we wouldn’t comment on any internal deliberative processes here, and that’s a rule across the board. What we would stress is that our focus is on encouraging Israel and the Palestinians to avoid, as I said before, unilateral steps that exacerbate tensions and that make it more difficult to preserve the viability of a two-state solution.

QUESTION: So is it under review, then? Is it under review?

MR PRICE: Again, we’re not going to comment on any internal deliberative process.

QUESTION: Well, wait, wait, does that – that suggests that there is a deliberative process going on.

MR PRICE: We —

QUESTION: So the previous administration, when it came to a conclusion that it did not think that the Hansell Memorandum * was appropriate or accurate, came out and announced it. Will this administration, if it determines that either you’re going to keep it – the previous administration’s position – or change it, will you announce it? Or is that now a deliberative process that you won’t talk about?

MR PRICE: What I would stress is that what will not change is our longstanding position – our position and the longstanding position of successive administrations, is that —

QUESTION: Well, except for the last – well, except for the last one.

MR PRICE: — is – is encouraging – is discouraging, excuse me – unilateral steps that would put a two-state solution further out of reach. If we have —

MR PRICE: If we have something more to say on this, we will say it.

QUESTION: So there is no change right now?

MR PRICE: We have nothing – we have nothing more to announce. If we do, we will announce it.

QUESTION: All right.

And on the issue of UNRWA, there was this exchange:

QUESTION: Now, Ned, last week you issued a statement on the meeting of the AHLC, the Ad Hoc Committee. Now, there was no mention normally – on Palestine – there was no mention of UNRWA or restoring aid, or let’s say aiding the hospitals in East Jerusalem and so on. So tell us about what’s going on with UNRWA. Are you resuming aid to UNRWA? Is it going to be retroactive aid? Is it happening now? Is it not happening?

MR PRICE: Said, I think as you’ve heard me say before, we intend to provide assistance that will benefit all Palestinians, including refugees. We are in the process of determining how to move forward on resuming all forms of that assistance consistent with U.S. law.

QUESTION: But we’re not talking about refugees, we’re talking about UNRWA. Are you going to resume aid to UNRWA?

MR PRICE: Said, we have said before —

QUESTION: Very simple, UNRWA is – you’ve aided UNRWA all throughout its existence. Now, are you going to resume that aid, or are you not going to resume that?

MR PRICE: I don’t have anything new for you today beyond saying and reiterating that we intend to provide assistance that will benefit all Palestinians, including refugees.

________

*

That memorandum concluded that

the establishment of the civilian settlements in those territories is inconsistent with international law

On the flaws of that opinion see

International Law Professor Eugene Kontorovich

International Law Professor Avi Bell (in converstion with Eve Harow)

Former Ambassador Alan Baker 

The Kohelet Forum and its Conference

Former Ambassador David M. Friedman

Prime Minister Binyamin Netanyahu

^

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

Occupation or Retention?

Here

Certainly some prolonged occupations are the result of colonialist or annexationist aims. But this is not inevitably the case. The Allied occupation of West Berlin lasted forty-five years, and had the then-dominant views about the duration of the Soviet empire been correct, it could have lasted forever. This was not an occupation of choice but of expedience. Similarly, with Israel’s capture of the West Bank, the situation was even more contingent. Jordan only entered the Six Day War half-way through, and the West Bank was entirely outside of Israel’s original war aims.

Israel retained the territory because immediate attempts at a settlement with the Arab states were rejected, as were numerous internationally-backed good-faith offers of statehood to the Palestinians after the end of the Cold War. Indeed, it is these repeated and rejected offers of statehood that prominently distinguish Israel’s situation from any of the others discussed in the book.

This leads us back to the question of temporariness. Maintaining a status quo over many decades is an impossible task, as nothing in the world stands still. Demographics and migrant flows, as Europe’s recent experience has shown, is one of those things. No one can stop the clock at 1967. Of course, Gross’s position is more nuanced, as it would forbid only changes that benefit the occupier. But this itself is a monumental task, as it effectively burdens the occupier.

Limiting one’s trade and movement with an adjacent territory is a high cost. That which burdens the occupier reduces the other side’s incentives to accept an amicable deal. And indeed, one reason the Geneva Convention may not have anticipated prolonged occupations is that its drafters did not conceive of situations where occupation would not promptly lead to annexation, or a peace deal on terms acceptable to both parties.

Thus an alternative normative occupation regime might, for example, terminate all restrictions on the occupier upon the failure of the other side to accept a good faith diplomatic arrangement that would leave them better off than they were before.

^

On the Occupation of Palestine and International Law in...1922

Is the question of the "occupation of Palestine" and the "transfer of a civilian population into the occupied territories" a new issue?  Is the Hague Convention only recently being recalled?

Of course not.

Excerpts from the British House of Lords debate on the

STATUS OF PALESTINE.

14 February 1922

LORD SYDENHAM [1] My Lords, I beg to ask His Majesty's Government the Questions of which I have given Notice—namely:—

1. Whether Palestine, pending the conclusion of peace with Turkey and the acceptance of the Draft Mandate by Parliament, remains in the position of "occupied enemy country."
2. Whether, in "occupied enemy country," International Law, as amended by Section III. of the Hague Convention, sanctions such proceedings as—
(a) The introduction into the country of more than 20,000 aliens against the wishes of more than 90 Per cent. of the people, aad in violation of enemy law.
(b) The imposition of a third official language, which is not spoken by more than five per cent. of the people.
(c) The selling, to a syndicate financed by aliens, of church property which, under enemy law, was treated as Wakf...


In October last I tried to raise the question of the legality of the proceedings of the Government in Palestine, and the answer I received at that time was not at all a satisfactory one. The noble Duke said the High Commissioner of Palestine was "in the position of a competent military authority." I have no doubt whatever that Sir Herbert Samuel is a most competent military authority, but even so exalted a personage ought to have the sanction of Law behind him. It is only in Ireland that we have inside the Empire 145 at the present moment a Government which has no legal authority. The noble Duke admitted at that time that the action of selling the lands of the Greek Church goes somewhat beyond that which is recognised by international jurisprudence as the normal functions of an ordinary Occupying Power. But he contended that "His Majesty's Government is not an ordinary Occupying Power"; and I think he was perfectly right. We are probably the most extraordinary Occupying Power ever known to the world.

Article 43 of Section 3 of the Hague Convention says this: The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and ensure as far as possible public order and safety while respecting, unless absolutely prevented, the laws in force in the country. I ask your Lordships to note those words, "while respecting, unless absolutely prevented, the laws in force in the country." Was the Zionist Government which we have set up in Palestine absolutely prevented from respecting Turkish Law in the cases which I have quoted in the second part of my Question? I could have included many more cases of the violation of Turkish Law than I have, but I have selected four typical cases. Is it really absolutely necessary to do all these things? If it is, then my whole contention, of course, falls to the ground.

Take the introduction of more than 20,000 aliens against the wishes of more than ninety per cent. of the people. Can we say that this was absolutely necessary? Why was there such a hurry about it when Palestine had not had time to recover from the devastations of the war and was not in a position to receive a great influx of colonists? This horde of aliens was collected by foreign agents in Central Europe and clumped down on the shores of the Holy Land only because British bayonets supported the dumping. Were British troops ever before employed in such a humiliating duty? Of this horde, a considerable number, no one can say how many, were Bolsheviks, and it was Bolsheviks who started the riots at Jaffa last year and posted up such placards on the walls as these: Down with the English coercive power. Long live the free women of the Communist Society. 146 A section of these aliens is destitute of all morals and is now adding to the vicious elements in Jerusalem and elsewhere. Is it fair to force these people on the Palestinians?

The latest achievement of the Zionists is to smuggle in 303 revolvers and 17,000 rounds of ammunition. They were all brought into the country in beehives and incubators, which the Zionist Government had proclaimed to be free of duty. A previous consignment was landed without detection, and a third consignment was found to be on the way. This must mean that these arms come from Germany through Trieste, and it shows that these imported aliens, whom we have forced upon Palestine by our Army there, are already in secret relations with their co-religionists in Europe. I ask your Lordships to consider whether all this was absolutely necessary and, therefore, consonant with the Article I have quoted from the Hague Convention.

I turn to the selling of the lands of the Greek Church, which was certainly in violation of Turkish Law. I explained in October exactly what was done. These lands were parcelled out into large lots which could not be purchased by any of the Palestinians, none of them being wealthy enough for the purpose. Since then the sale has taken place. There was no competition, and I understand that the lands went for very much below their value. The possessors of this land, which is the most valuable suburban land around Jerusalem, are now living in New York, Chicago, Frankfort, Berlin, Paris, London—all or any of these places. Article 56 of the Hague Convention directs that the property of institutions "dedicated to religious worship, … even when belonging to the State, shall be treated as private property." I do not know if that Article helps my ease in any way, for I am not lawyer enough to be able to say, but the fact is that this Church property was sold to aliens by the Zionist Government against the wishes of the people and against the law of the country, and the effect of that in future will be most serious. Again I ask your Lordships to consider whether that could be pronounced to be in any way a necessary action.

...I have spoken of the Government of Palestine as a Zionist Government, and I think I am justified in using that term. The Government is a pure autocracy in the hands of a man whom Mr. Churchill described in the House of Commons as "an ardent Zionist." In addition, the Legal Secretary is a Zionist, the Secretary of Commerce and Industry is a Zionist, and the Director of Stores, who disposes of all the contracts, is also a Zionist. It is a remarkable fact that two of these persons took a very active part in the long and complicated manœuvres which led to the Balfour Declaration, and they now appear in high office in Palestine. But that is not nearly all. An imperium in imperio was set up in April, 1918, six months before Viscount Allenby had completed the conquest of Palestine, so great was the hurry to take possession of this little country. That Zionist Commission was reorganised and strengthened in 1919, and it consists of persons who are not Palestinian citizens but are supposed to represent International Zionism. The effect of such a body sitting in Jerusalem can easily he imagined. Like Bunty, it pulls all the strings. By the terms of the proposed Mandate it is proposed to make this Commission a statutory body, and that will have the necessary effect of placing the economic future of Palestine in the hands of foreign international capitalists. I should have thought that even a Unionist House of Commons would not have put up with that, but one never knows what may happen now.

In his recent tour in Palestine, Lord Northcliffe made two quite important discoveries. He found out that Palestine is now governed by armoured cars, which I think quite well expresses the situation, and he also discovered that the orthodox Jews of Palestine are very strongly opposed to Zionism, as indeed they may very well be. I hope I have not wearied your Lordships; I have not told half of this wretched story. In all our history I know of no instance in which we have occupied a country, said we were liberating that country, and then treated it with the injustice and even inhumanity that we have shown to Palestine...

I think that the patience and restraint shown by Palestinians, Moslem and Christian, like the patience and restraint which have been shown by Ulstermen, have been very remarkable.[2] There have been some local disturbances, which in certain cases, as at Jaffa, were started by Zionists. But it is not safe to count on the continuance of this patience, and our present large and quite unnecessary military expenditure may have to be very considerably increased in the near future. I hope that His Majesty's Government will this afternoon make the situation perfectly clear, in so far as it is affected by the Hague Convention. For myself, I attach much more importance to the moral law than to any other law, and I believe that we are now violating the moral law every day in the treatment of our late Allies, the helpless Palestinian population, for whose welfare we have made ourselves completely and entirely responsible.

THE DUKE OF SUTHERLAND My Lords, the status of Palestine and the position of His Majesty's Government therein were exhaustively discussed in your Lordships' House in connection with the Question asked by the noble Lord, Lord Parmoor, on November 10 last [3]. On that occasion I explained that Palestine is at present, and will be until the coming into force of the Treaty of Peace with Turkey, "occupied enemy territory," and that His Majesty's Government's position therein is that of an Occupying Power.

I went on, however, to explain that His Majesty's Government's position is not that of an ordinary Occupying Power. In ordinary circumstances an Occupying Power is merely in temporary occupation of a portion of enemy territory which may, and probably will in due course, be returned to the Power which formerly possessed it. In these circumstances it is only 149 reasonable and proper that the Occupying Power should maintain the territory as far as possible in statu quo ante, in order that the minimum of dislocation may occur when it is evacuated and returned to the Power which possessed it before. It is also in ordinary circumstances usual to find in the country an existing administration which can be carried on without very much difficulty.

In the case of Palestine, however, both these conditions are absent. Palestine is not going to be returned to Turkey, and the obsolete and outworn system of government which had been imposed by the Turkish conquerors upon a non-Turkish population had disappeared with their disappearance. There was, therefore, no reason for re-establishing this system, and it was incumbent, upon His Majesty's Government, as I said in my reply to the noble Lord, Lord Parmoor, to set up a civil administration in the country for the purpose of discharging the necessary functions of government.

But more than this, His Majesty's Government, when they were entrusted with the administration of Palestine by the Supreme Council of the Allies at San Remo, were entrusted with it under certain definite conditions. They were to administer the country in such a manner as to implement the Balfour Declaration; that is to say, while protecting the civil and religious rights of the existing inhabitants, they were to render possible the establishment of a Jewish National Home in Palestine. Such conditions were totally incompatible with the strict observance of the status quo ante, by which was implied the maintenance of that mediæval immobility which was characteristic of countries within the Ottoman Empire. His Majesty's Government cannot therefore admit that they are entitled only to take such action in Palestine as is strictly sanctioned by Section 3 of the Hague Convention.

I will now deal with the four specific points raised by the noble Lord. First, as regards immigration, the obligations imposed on His Majesty's Government by the conditions under which Palestine was entrusted to them, made it necessary for them to initiate a policy of strictly controlled and selective Jewish immigration up to the economic absorptive, capacity of the country. It is true that in 1888 a Turkish Law was promulgated forbidding the entry into Palestine of foreign, or, indeed, Turkish Jews for a period exceeding three months. The Powers, however, never recognised the validity of this law, basing their objection on the fact that it tended to discriminate between Jewish and non-Jewish nationals of foreign States, and in practice the law had been ineffective since its promulgation...

§LORD LAMINGTON My Lords, I do not quite understand from the answer of the noble Duke what is the present position of the Immigration Regulations in Palestine. I understand that those Regulations, which imposed certain discrimination as to the nationality of the Jews who were to be admitted, were a failure, and that therefore at the present time Jews of any nationality can enter Palestine, presumably under Zionist assistance. To my mind, the one question which touches not only the Arab but the Christian population of Palestine, is the question of immigration. I understand that there would be no objection to a native of Palestine returning to his home, but there is the strongest objection to having immigrants introduced there by Zionist or Jewish influence, and this is a point which weighs most heavily, I fancy, upon all those who dislike the idea of this Jewish Home in Palestine. I should therefore be glad if the noble Duke would say what is the position of the immigration of Jews into Palestine.

THE DUKE OF SUTHERLAND I think I made it clear in the first part of my statement that we had initiated a policy of strictly controlled and selective immigration up to the economic absorptive capacity of the country—that is to say, not more than can be absorbed in the country are allowed to come in, and those who are able to come in are carefully examined before they are allowed to enter. No Bolsheviks, or people of that kind, are allowed to come in.
LORD LAMINGTON Are their passages paid, or do they come in by voluntary effort?
THE DUKE OF SUTHERLAND May I have notice of that Question?
LORD RAGLAN Is it not a fact that a large number of these Jews are not self-supporting, but are employed on relief works, paid for by the Arab taxpayer?
THE DUKE OF SUTHERLAND That, again, I should like to look into, but I doubt whether it is so.
LORD SYDENHAM May I ask whether in the four cases which I quoted in the Question, His Majesty's Government consider that the Government of Palestine were absolutely prevented from following the ordinary law of the land. Do I understand the noble Duke to say that the original Turkish Law, which rigidly regulated the introduction of Jews, had not been observed?
THE DUKE OF SUTHERLAND The law which was promulgated in 1888 has never been put into force, or recognised by the Powers. It is true that it existed, but it has never been observed.
LORD SYDENHAM I take it, all the same, that it has been acted upon, because there was no great influx of Jews until we took over the country.

My notes:

[1] In a speech he delivered at a luncheon given by the Palestine Arab Delegation at the Hotel Cecil in London on 15th November, 1921 he spoke the Zionist aggression in Palestine : its objects and achievements and described the Mandate negotatiated with the Zionists as "monstrous".

and this which resonates with the theme of Canaanite Eyes, here too, and more and  Saeb Erekat's propaganda Netufians

[2] In April 1920, May 1921 and November 1921, there were murderous Arabs riots in Jerusalem, Jaffa and Petah Tikva.

[3] The debate is here.  And it includes this section:

"THE DUKE OF SUTHERLAND My Lords...It is quite true that the present legal position of His Majesty's Government in Palestine is that of a power occupying enemy territory. I am advised that, from a strictly legal point of view, the action taken by His Majesty's Government, through the Palestine Government, with respect to the Patriarchate is entirely legal; that is, that it cannot be questioned by the Courts and will be validated in due course by the necessary legal processes when the military occupation comes to an end. I am informed that the Ordinance regulating the affairs of the Patriarchate is perfectly legal, in that it is an order of the High Commissioner who is in the position of a competent military authority.

On the other hand, it is perfectly true that this action goes somewhat beyond that which is recognised by international jurisprudence as the normal functions of an ordinary occupying power. But I would represent to your Lordships that His Majesty's Government. is not an "ordinary" occupying power. It has been entrusted by the Supreme Council of the Allies with the administration of Palestine, pending the coming into force of the Treaty of Sevres, and consequently considered itself authorised, and indeed bound, to set up a civil administration in the country for the purpose of discharging the usual functions of Government...According to International Law a country in foreign occupation must be administered according to its own law, but the occupying Power can modify this law by orders issued by the competent military authority, and this has been done in regard to many matters in Palestine,..

LORD PARMOOR If I may say one word in answer to the noble Duke, I thank hint very much for the detailed answer that he has given to my Question, but if we look beneath the surface I think I am not going too far if I say that he, speaking on behalf of His Majesty's Government, admits that what has been done in Palestine cannot be regarded as legal under International Law, and will have to be validated by subsequent proceedings.

THE DUKE OF SUTHERLAND My reply does not admit that it is illegal action. The words I used were: "I am advised that front a strictly legal point of view the action taken by His Majesty's Government, through the Palestine Government, is entirely legal."...I... made it clear that there are powers by which the High Commissioner, representing the military authority, can modify the law. "The occupying Power can modify the law by orders issued by the competent military authority," and therefore the action taken was in that respect legal.

^

Giuditta Riva and International Law

I spotted this exchange in a recent Haaretz column of Liat Elkayam, 'Departures | Arrivals':

Giuditta [Riva]: It’s so easy to connect with Israelis. There are hardly any walls here between people, apart from the one in the territories…

 a 2008 snap

Do I detect a bit of political criticism here?I want to make it clear that I understand perfectly how easy it is for foreigners like me to come to Israel and be critical of the political situation. In Italy, no one has a reason to be afraid of taking a bus or going to church. It’s easy to be tolerant and respectful of human rights when your children aren’t risking their lives.

Are human rights a subject close to your heart?A week ago I completed my master’s degree in law, specializing in international law. When I was here last time, it was to write my thesis.

About Israel?The application of human rights in the occupied territories – a very complex subject.

Tell me about itOverall, I think there is a line that runs between good and bad, and sometimes that line snaps and it’s impossible to know who’s good and who’s bad. On paper, Israel is violating international law in a number of ways, but I understand why a state will do all it can to protect its citizens. My thesis is about international law, according to which – and this is the accepted belief in international courts – Palestine is occupied, and human rights and international law apply there. The Israeli opinion, which has no legal basis, is that the Geneva Convention is inapplicable in the territories, because Palestine is neither a state nor is it a territory under Israeli jurisdiction. But everyone has human rights, it’s not a matter of geographical boundaries.

Is there anyone on Israel’s side in this issue?The United States. In Guantanamo, the U.S. put forward exactly the same argument: that Guantanamo is extraterritorial and therefore the Geneva Convention does not apply.

How do we move ahead?There are many possibilities, but from a legal standpoint it’s first of all a theoretical question: Should humanitarian law and human rights be applied in Palestine?

What’s the answer?That Israel is not doing it, but should.

I think there are some basic errors in Ms. Riva's presentation.

First of all, the main reason why Israel rejects the full application of the Geneva Convention is that that treaty is between "High Contracting Parties".  The definition of high contracting parties is, simply, the representatives of states who have signed or ratified a treaty, and quite specifically states.

"Palestine", or the "Arab state" as originally envisioned by the UN's 1947 Partition Plan recommendation, never existed and certainly did not in 1967.  UN Resolution 242 refers to "member states" and "states in the area", which 'Palestine' was not.  There was no High Contracting Party that controlled those territories legally.

Second, Israel actually does apply humanitarian law to the administered territories of the Palestine Mandate not under Israeli sovereignty.  Here is an opponent of Israel admitting:

the Israeli government has consistently contested that the Fourth Geneva Convention is applicable de jure to the situation prevailing in the Occupied Palestinian Territory, it does nevertheless accept a de facto application of what it calls the ‘humanitarian provisions’ of the Convention. Moreover, the Israeli Supreme Court has clarified that certain provisions of the Convention as well as the rules of the 1907 Hague Regulations reflect customary IHL and are therefore binding on the authorities in the territories

Another formulation of Israel's position is here:

Israel ratified the Fourth Geneva Convention in 1951. In principle, Israel rejects the applicability of the Fourth Geneva Convention to the West Bank and the Gaza Strip as it considers those territories as captured in 1967 as the result of a defensive war against countries that had illegally occupied them in 1948...the governments of Israel had undertaken to act in accordance with the Fourth Geneva Convention, and the Israeli High Court of Justice considered that Israel holds the Palestinian territories by virtue of belligerent occupation.

In other words, there is an argument about the political aspects of the administration of Judea and Samaria but not as regards any and all strictly humanitarian responsibilities. And by 'political', it is taken to be the means to achieve an eventual resolution of the conflict and what that final resolution will reflect on Jewish rights, including the right of residence.  The counter-argument to Israel's position is expressed by the International Committee of the Red Cross, for example, is that the establishment of Jewish communities and villages and towns in Judea and Samaria, and in Gaza until 2005, is a policy that

amounts to a violation of IHL, in particular the provision of the Fourth Geneva Convention prohibiting the transfer of part of the population of the Occupying Power – in this case Israeli citizens – to the occupied territory.

That approach is ridiculous in that it ignores the provision of the League of Nations which guaranteed, in those very territories, the right of "close settlement on the land" or, as I noted, the right of Jewish residence.

As a less-than-sympathetic Israel scholar wrote

the chorus of recriminations against Israeli settlements disregards the (by no means trivial) segment of settlements in the West Bank, undertaken by Israeli nationals individually – at times, on private land owned by Jews since the days of the British Mandate...or on parcels of private land purchased for full market value from those having title to it – without any financial or other sponsorship from the Israeli Government (indeed, in not a few instances, against the official policy of the Government). When settlers act entirely on their own initiative, when they do not arrogate to themselves land belonging to others or expropriated from its rightful owners, and when they do not benefit from any overt or covert governmental inducement,

 Thirdly, in not seeking the full implementation of humanitarian law to Jews in those areas, the international community is derelict in its neutrality.  In the first place, Jordan's illegal occupation was ignored.  In the second place, other ongoing illegal occupations in Morocco, Tibet, Cyprus, etc. are ignored.  And in the third place, Jews lived in those territories for centuries and were ethnically cleansed, in many cases through extreme violence, pogroms and massacres, but the world that wages battle against Israel in forums using 'international law' are blind to those Jewish rights.

A fuller discussion of Israel's legal rights in Judea and Samaria I listed here.

If she wants to visit me, she's more than welcome.

^

Is Ebola Comparable to Terror in a Legal Sense?

I was just wondering, this act is legal according to international law, yes?

Kenya is closing its borders to travellers from Guinea, Liberia and Sierra Leone, the three countries worst hit by the Ebola outbreak, the government has announced.  Kenya Airways also announced that it would suspend its flights to Freetown and Monrovia when the government travel ban on passengers comes into effect on Wednesday.

Several European carriers have already suspended services to the Sierra Leonean and Liberian capitals, where states of emergency have been declared to try to slow the spread of the disease.

Kenyan Health Minister James Macharia said the measure was also aimed at travellers who have passed through the affected countries.  "In the interest of public health the government has decided to temporarily suspend entry into Kenya of passengers travelling from or through the three West African countries affected by Ebola, namely Sierra Leone, Guinea and Liberia," he said.

And these measures -  Quarantine, Isolation and Interment - also seem to be legal.

Of course, there are those who, despite health threats, still demand open borders and do not accept the "disease argument".  Nevertheless, the principle seems to be:

Applied to transnational infectious disease threats, the fairness of the law as an ‘‘intermediate public good’’ must be measured by an effective delivery of radically reduced disease morbidity and mortality burdens across societies in a globalized world. These dividends are the fundamentals of global healthsecurity.

If health concerns are legitimate, if the exposure of a population to a potential danger is cause enough to prevent border crossing as well as a form of quarantine, then surely the threat from terror attacks that have a higher possibility of killing civilians is justification for what Israel deems necessary for public security vis a vis Gaza:-

Prime Minister Benjamin Netanyahu said on Sunday any deal on Gaza's future had to meet Israel's security needs...Netanyahu, in public remarks to his cabinet, said Hamas should not underestimate Israel's resolve to battle on.

"Only if there is a clear response to our security needs will we agree to reach understandings," he said.

"If Hamas thinks that through continued intermittent firing it will cause us to make concessions, it is mistaken. For as long as quiet does not return, Hamas will continue to absorb very harsh strikes."

___________
P.S.  Any attempt to imply, and thereby impugn me, that I am suggesting that Arabs of Gaza are either diseased or carries of a disease is purposely misreading this post.  I am comparing the cases of a state's right to defend itself through the facility of closed borders.

^

On International Law and Jewish Residence in Judea and Samaria

Responding to a post by Prof. Eugene Kotorovich in which he notes the irony of Mahmoud Abbas attempting to use Turkey as its partner in foing to the International Criminal Court on the issue of "settlements", writing

Turkey continues to occupy northern Cyprus, and is responsible for a massive settlement program there.

I’ve written before about “other countries’ settlements,” but one might think that an increasing discussion of Israel’s civilian communities in prosecutorial terms would increase the discusion of other (often more blatant) violations of the same international norm...If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey [which occupies part of Cyprus]...But a referral by Cyprus would not face the various thorny temporality and territoriality issues of a Palestinian complaint. Moreover, Cyprus is a particularly gross case of changing the demographics of occupied territory through settlement, with settlers now outnumbering protected persons n the territory.
Apart from the manifest hypocrisy, what should be disappointing for believers in international humanitarian law is the failure of anyone to call Abbas (or Erdogan) on it. I am not aware of any news, NGO, or governmental response pointing out the unseemliness of Abbas invoking the ICC from Ankara.

Dr. Kevin Jon Heller wrote, while disagreeing with Konorovitch's position, Heller nevertheless makes an important distinction:-

...The mere fact of settlement in occupied territory is not a war crime; the actus reus of the crime is “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.”  Article 8(2)(b)(viii) thus targets state officials whose actions facilitate the transfer of civilians into occupied territory; it does not target the settlers themselves...

I left this comment there in response to another commentator:

Pain over occupation should not be relative to this or that presumption of insensivity.  Many Jews consider the occupation of Judea and Samaria by the Hashemite regime in 1948 and its illegal annexation in 1950 - in addition to the results of the 1947-48 hostilities which came about because the Arabs states and the Arab community in the Palestine Mandate rejected the territorial compromise proposal (yet another partition of the Jewish National Home after the 1922 truncation of the area to facilitate a new home for a Saudi Arabian refugee who was intent upon fomenting violence to assist his brother dislodged from the throne in Damascus, the 1937 partition plan and the 1939 one) which were the final ethnic cleansing of Jews from all Arab-held areas to be very painful, historically unjust as well as illegal.
That the revival of Jewish communities in those areas, gained in a war of defense in 1967 following Arab aggressive moves, should be considered somehow illegal and we residents as part, passive as KJ Heller makes clear, of a "war crime" when all we are doing is not transfer (or being tranferred) but recreating the life that was in those areas for many centuries, even prior to the Arab illegal conquest and occupation in 638 CE, is not only an insenstive position to hold and advance but, I would suggest immoral and untenable.
The 19 years between 1948 and 1967 were the only time in some 3000 years when Jews were totally banned and excluded from that area although in early periods temporary prohibiition by foreign occupiers were in effect in various locations, off and on, to be hiostoricall accurate.   In fact, in was only under the Mandate regime of 1922-1948 that the local Arabs, some recent immigrants themselves, managed to destroy permanently (well, until 1967) Jewish life in Gaza, Shchem [Nablus], Jenin, Hebron among other locations.  How ironic for a situation whereby the League of Nations decided to "reconstitute the Jewish nation home" in those areas (after all, they were west of the Jordan River; what was excluded from the Mandate was east of the river) and the Mandate was to "facilitate close Jewish settlement on state and waste lands" (Article 6).  
KJH suggests that Israeli officials who have been doing that, facilitating the movement of Jews into Judea and Samaria, and previously, Gaza, are somehow war criminals.  Odd and illogical to me and not only insensitive.

_________________

Someone commented:

Art. 8 “does not target the settlers”?  Well, without addressing the alleged responsibility of a direct perpetrator, what about accomplice liability under Art. 25(3)(c) when they intentionally engaged in conduct and knew or were aware that that conduct can or will facilitate the conduct of a direct perpetrator?

^

Scobbie's "Do" on the Levy Report

I left the following comment at Professor Iain Scobbie's atrocious blog post on the Levy Report:-

Attempting to assert that Jews constructing homes and residing in them (and building schools, factories, planting crops, etc.) in the region of Judea and Samaria is somehow illegal and must be pejoratively termed as "settlement activity" is, actually, the more perverse viewpoint and the real travesty of law.

In the territory the entire civilized world recognized as the Jewish national home and which it was decided that that home be reconstituted, international law provided for a right of "close settlement by Jews" on state and waste lands in that area which, due to the provisions of Article 25 of the Mandate for Palestine in 1922, was temporarily limited to all the area of the country west of the Jordan River (for after all, Article 5 obligated the Mandatory Power not to cede or in any way placed under control of another power).  The rights provided for "non-Jews", that is, everyone else living in the country (including Arabs who conquered and occupied the country in previous centuries), were limited to solely to "civil and religious rights" but not "political" or "national".  The Mandate was to provide for the basis of a Jewish state.

That state was to arise through territorial compromise as recommended on November 29, 1947 but that suggestion was rejected by the local Arabs and at least seven other Arab countries in a war of aggression.  Surely, no rights can accrue such a group of people when, after losing that illegal war and then launching terror attacks against Israel in the 1950s through the Fedayeen terror and then after 1964, through Fatah, another war was propagated in 1967 through which, in an act of defense, Israel became an administer of Judea and Samaria whether one calls that a "belligerent occupation" or a reversion of sovereignty or anything in-between.

The Jewish people who were ethnically cleansed for Judea and Samaria during the Mandate period, even prior to the outbreak of Arab-initiated hostilities on November 30, 1947, from their homes in Hebron, Nablus/Shchem, Gaza, Jenin, and then from Gush Etzion, Neveh Yaakov, Atarot, Bet HaAravah and the Old City of Jerusalem, all geographical locations Scobbie would call the "West Bank", have all the legal right(s) to reconstitute those homes and farms and other elements of a normal national life, even including a university in Samaria, a winery in Binyamin and a factory in Judea.  There cannot be anything illegal for me to reside in Shiloh.

^

A Legal Confrontation Presenting Itself?

I was sent this (k/t=IMRA):

PA considers legal action against Israeli officials, settlers
 

The Palestinian Authority is considering taking legal action against Israeli leaders and settlers who practice “terrorism” against the Palestinian people, a legal advisor to President Mahmoud Abbas said Friday.  Hasan al-Auri told Ma’an that the PA would seek to sue Israeli officials in international courts, and to prosecute settlers in national courts in countries where it is allowed to prosecute foreigners.

...The PA, added Abbas’ legal advisor, avoided suing settlers in Israeli courts because Israel would protect them “using false justifications to their conduct.”...

I would welcome such a challenge.

I cannot see how, given the legal documentation, the surrounding contemporary comments, that they could ever make a case.  To prohibit Jews from constructing homes in the area of the Jewish national homeland would open the PA, its laws against Jews owning property, its pronouncements against permitting Jews to live in the future yet-to-be 'state of Palestine' and its incitement actions, to such counter suits, not to mention endangering the status of Arabs living in Israel, that it would counterproductive.

^

On Cogan's Bluff - Huffington Post Comments

These three comments of mine were left at a Huffington Post article by one Dr. Charles G. Cogan, Associate, Belfer Center for Science and International Affairs at Harvard's Kennedy School (his site is here)

This assertion is woefully inadequate for a scholar: "But how could a mass influx of Jews into Palestine not prejudice the "civil and religious rights" of existing non-Jewish communities there? The Balfour Declaration stands, along with the partition of India, as an icon to the micawberish policies of the British Empire at the start of its decline."

How? By they becoming citizens of the Jewish state which is what happened to the Arabs that stayed in the borders of Israel after 1948, preferring not to run away nor fight in a war of aggression in violation of the UN recommendation that indeed a Jewish state be established. That the state was to be Jewish was not in doubt; its borders in the end depended on Arabs losses after they sought to eradicate the nascent state.

"Civil and religious rights" are quite obviously not national nor political rights. The Arabs (actually the non-Jews, since that is the term used; Arabs never even being mentioned and that was purposeful) were not to gain such rights but only civil, personal and religious.

Mr. Cochran is subverting the history as well as the language employed.

And to someone who wrote:

For the record:

The 1922 League of Nations British Mandate for Palestine was a Class A Mandate, i. e, Palestine was to be administered by Britain AS A WHOLE until its citizens were able to assume democratic self-rule. By incorporating the Balfour Declaration the mandate did facilitate Jewish immigration to "secure the establishment of the Jewish National Home," but it did not call for the creation of a Jewish state or homeland in Palestine or any form of partition. As declared in the Churchill Memorandum (1 July 1922), "the status of all citizens of Palestine in the eyes of the law shall be Palestinian, and it has never been intended that they, or any section of them, should possess any other juridical status."

Furthermore, regarding the British Mandate, as approved by the Council of the League of nations, the British government declared: "His Majesty’s Government therefore now declare unequivocally that it is not part of their policy that Palestine should become a Jewish State." (Command Paper, 1922)

I commented:

That the Balfour Declaration "did not call for the creation of a Jewish state or homeland in Palestine" is a mis-comprehension of the legal process which decreed very much so that a Jewish homeland was to be established. That process was (a) Balfour declaration.; (b) deliberations at Versailles peace Conference 1919; (c) attempted Feisal-Weizmann agreement 1919; (d) San Remo Conference decision, April 1919; (e) League of Nations awarding of Mandate, July 1922, Sept. 1923. It was this string of decisions that decided that no Arab state would arise in Palestine but in Syria, Lebanon, Mesopotamia in addition to Egypt and Saudi Arabia.

And again, British policy could not override League of nations and in 1939, Zionists went to Geneva to appeal against the British White Paper which completely subverted the essence of the Mandate. But WW II broke out, halting procedure.

And to another who wrote:

Both Churchill and the MacDonald White paper rendered Balfour moot.

I responded:

Ridiculous. British statements of colonial office or foreign office policies could not override a decision of a body such as the League of Nations. even the 1947 Partition plan of the UN was but a recommendation.

The last two are your regular anti-Zionist trollers but that Cogan should ...compose such inanities?  Worse, having had a "37-year career in the CIA, ...23 of them overseas...in India, Congo, Sudan, Morocco, Jordan and France. From 1979-1984, ...chief of the Near East and South Asia Division in the Directorate of Operations, and from 1984-1989, ...CIA chief in Paris", it is now obvious how administrations could be misled and ill-advised.

For example, on the definition of Palestine, Cogan writes:

"The territory of Palestine was not defined until September 1, 1922 as a line "drawn from a point two miles west of... [Aqaba] up the center of the Wadi Araba, Dead Sea and River Jordan to its juncture with the River Yarmuk; thence up the centre of the river to the Syrian frontier." This was the boundary between Palestine and Transjordan... the Balfour Declaration called for a Jewish national home in "Palestine" which later became defined, per above, as ending at the Jordan River..."

First of all, indeed, it was only the Jewish people who had any definition of the country as a geo-political entity which we termed Eretz-Yisrael.  The Ottoman administrative boundaries changed and surely did not create a recognizable "country" per se.  The Arabs were not "Palestinians" but until the early 1920s, and even later, considered themselves as "Southern Syrians" and demanded the Mandate be joined to that of Syria under France.

Secondly, Transjordan, which surely did not exist, as implied, as a country, was actually part of the Palestine Mandate until 1946 at which time, when applying for acceptance to the UN as an independent country, was refused because the US State Department accepted the Zionist argument that only when the Mandate ended and the Jewish national home was reconstituted could any part of the original territory be separated from what should become the Jewish national home.


Thirdly, Cogan's bluff, that "the Balfour Declaration called for a Jewish national home in 'Palestine' which later became defined, per above, as ending at the Jordan River" is untrue. 

Article 25 of the Mandate decision reads:

In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions...

There was no 'ending' at the Jordan River.  In addition to the continued administration of that area by the High Commissioner sitting in Jerusalem, as mentioned previously, there was an acquiescence to Britain's move in March 1921, first at the Cairo Conference and then in Jerusalem at the end of the month, to 'postpone' and to 'withhold application of provisions' but that was but a temporary situation, at least as conceived in 1922.

Even the September 1922 memorandum reads ""In the application of the Mandate to Transjordan, the action which, in Palestine, is taken by the Administration of the latter country will be taken by the Administration of Transjordan under the general supervision of the Mandatory."  And also, "From that point onwards, Britain administered the part west of the Jordan as Palestine, and the part east of the Jordan as Transjordan. Technically they remained one mandate...".

Is Cogan truly knowledgeable of such matters or is more a propagandist?

Moreover, as Eli Hertz points out, The Mandate for Palestine "laid down the Jewish legal right under international law to settle anywhere in western Palestine, the area between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law [done by] Fifty-one member countries - the entire League of Nations - unanimously...on June 30, 1922, a joint resolution of both Houses of Congress of the United States unanimously endorsed the 'Mandate for Palestine'...".  And there was the Anglo-American Convention of 1924 which repeated the commitment.

So, whether Cogan likes it, or not, the Balfour Declaration was part of the sense of the US Congress, too.

It is sorrowful that the Kennedy Center thinks Cogan is employable.

^

Berman's Post-Modernist Cultural International Law

We have an anti-Levy Report opinion that seeks to undermine the "international law" approach.

It's here, penned by Nathaniel Berman, a professor of  International Affairs, Law, and Modern Culture at Brown University’s Cogut Center for the Humanities.  (And I think "culture" is the key term there)

His op-ed at The Times of Israel is entitled -

San Remo in Shiloh: 

The settlements 

and legal history

 

Here are his salient points

... I will refrain from giving an overall analysis, and will focus only on those aspects that set it in the context of legal history. The Commission’s report operates in something of a parallel legal-historical universe, one in which legal evolution stopped sometime in the 1920s and in which the majority of international lawyers writing after that era simply do not exist.

Is he a post-modernist?  Is there such a thing as that in international law?  Is so, when do the 1949 Geneva Convention human rights law principles get "stopped"?  Or, on the other hand, when does a law professor have the right to deny the existence of historical international law?

...two of the report’s assertions stand out. First, that Israeli rule in the West Bank cannot be considered an “occupation” in the legal sense because the land was not conquered from an internationally recognized sovereign (what Blum calls the “missing reversioner” theory), and that international law applicable to occupations, including the Geneva Conventions, does not, therefore, apply. Second, that Jewish settlement activity today is legally authorized under the 1917 Balfour declaration calling for the “establishment in Palestine of a national home for the Jewish people;” the Four-Power 1920 San Remo Resolution that, among other things, adopted the Balfour Declaration; and the 1922 British League of Nations Mandate for Palestine...

The report’s conclusion – that there is “no doubt that, from the point of view of international law, the establishment of Jewish settlements in the region of Judea and Samaria does not suffer from illegality” – actually understates its case: its logic is that such settlement is strongly encouraged by international law.

So, what's his problem?

Ah, here it is:-

...in the first place, from the fact that its international legal arguments have virtually no support within the discipline, beyond the narrow circles of former or present Israeli government officials and a handful of non-Israeli Jews associated with staunchly right-wing views on Israel. It would not be an exaggeration to say that at least 90% of international lawyers – including the International Court of Justice – firmly reject the position that the report announces as representing the “point of view of international law.” Of course, one can argue that the overwhelming majority of international lawyers are wrong, either legally or morally or both.

Remember the "silly proof" of his argumentation line?  If one million flies alight on a piece of rotting meat, does that mean it's a good thing, for humans that is?

Berman calls this opinion an "oddity"

...even more so in international law, where “legal opinion,” known to lawyers under the Latin phrase “opinio juris,” plays such a large role in the determination of legal rules. It is as though the Commission were operating in an alternative legal universe, populated only by a handful of pro-settler lawyers. The notion that there is no “occupation” due to the absence of a recognized pre-occupation sovereign (the “missing reversioner”), and that Jewish settlement in the West Bank is legally justified by a string of early 20^th century documents, suggests that the report is operating in a parallel temporal universe – much in the way that its seeming ignorance of the quasi-consensus of legal opinion against its views suggests that it is operating in a parallel disciplinary universe. 

He then deals in particulars:

...The Balfour Declaration...was simply of no legal significance; it was a statement of British policy in relation to territory over which, at the time, it had neither control nor any legal claim. 

But its wording was adopted and included in all subsequent acts of international law despite this claim:.

The San Remo Resolution...however, was not a treaty and not formally binding; it was a statement of intent by its signatories to embody its conclusions in a treaty.

But it was included in the League of Nations decision to grant Great Britain the Mandate and formed the basis of all future reports and deliberation thereon in the League of Nations Mandates Commission

...By contrast, the Mandate instrument granting Palestine to British rule, obliging the British to pursue the goals of establishing a “national home for the Jewish people,” 

Er, Prof. Berman, you under-quoted.  "Reconstituting" is the operative word you left out from the next paragraph in the preamble:

Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country:

That recognition, even better than international law, sinks your approach.  You cannot now try to alter a framework of international law agreements, understandings and contracts that on based on history by saying that history doesn't count.

And Berman continues ,

and encouraging “close settlement by Jews on the land,” was a clearly legally binding international treaty. The ultimate basis for the Palestine Mandate was the Covenant of the League of Nations...

Thank you for that, sir.  And he nevertheless attempts to trump us:

...what has developed in international law in the intervening century has been precisely a powerful current rejecting the notion that the interests and intentions of powerful states are the alpha and omega of legal analysis. The two key principles of this current – the self-determination of peoples and the human rights of individuals – have considerably diminished the legal import of minute analyses of imperial memoranda and pronouncements. Rather, this current has elaborated the principle articulated by Woodrow Wilson in 1918 that “peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game.” This current ultimately led to the delegitimation of classical colonialism and the emergence of the view, expressed by a judge of the International Court of Justice, that institutions such as the League Mandate system...

Well, first, Wilson came out in favor of a Jewish National Home in Palestine.  Harding, too, in 1922.  Second, the US Senate and House passed declarative resolutions in 1922 affirming America's backing for the Mandate, based on the Balfour Declaration and confirmed that in the Anglo-American Treaty of 1924. All this is post-1918.  But he's post-modernist so he commands us not to ignore

the legal consensus that emerged gradually over the past century, but particularly since 1960,

Yes, law approaches can move on but they cannot erase what went before.  For example, the 1947 UN Partition recommendation included this stipulation

The Security Council determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution;

My thinking would be that the moment the Arabs launched their war of aggression on November 30th, 1947, this recommendation was a dead letter.  We are left with a void.  And in going to a war of terror between 1949-1967, the Arabs, for a second time, renounced all claims to assistance from international law, leaving Israel in place with the better claim to administer the territory of Judea, Samaria and Gaza if only on the basis of ad victorem spolias.  And 1967 was post-1960.

And let's not forget that the President of the ICJ between 1997-2000 very much disagrees with Berman, supports the Levy Report in essence/  And this was also post-1960s.  All Berman's examples from the 1990s then are irrelevant to genuine legal opinion about Israel's just rights.

His harping on this

...a change in circumstances – known to international lawyers as “rebus sic stantibus,” can nullify a treaty provision. It is hard to think of a clearer case for the application of this doctrine than here. The policy of encouraging “close settlement of Jews” was aimed at furthering the establishment of a “national home” and can hardly be relevant when not only a “national home” has been established, but an internationally recognized state, a UN member for 64 years.

caused me to leave this comment at his op-ed:

I am not an expert or academic diplomaed lawyer though I have read a lot and think I am a rational-thinking person - but if the argument goes that things change and the law should change, what do I do with the fact that Arabs not only never recognized what the world did, did not accept what the world - all the civilized world at that time which was the Jewish national home had to be reconstitituted in Palestine - decided and moreover acted violently from 1920 onwards, never agreed to any compromise nor any partition, constantly went to war, engaged in terror, etc. That negation and refusal never altered. So, should that approach be awarded? If you discount Zionists depending on a 90-year old situation, why should we kowtow before a 90-year old plus policy of violence? They get rewarded for sticking, literally, to their guns but we Jews, sticking to international law, are punished? Does that make sense? If I signed a contract with you Prof. Berman that your pension rights belong to me and 50 years go by (well, we are living longer nowadays) can that contract be abrogated? Or reverse, I am a millionaire and we signed that my fortune goes to you after 120 of my years? Can a cancel it for changed circumstances? Nu?

When your argument is weak, get nasty and so he overextends himself:

But the “change of circumstances” goes more deeply, to the core legal values at stake. The Mandate system, based on the racially paternalist, if not simply racist, notion of “peoples not yet ready to stand up under the strenuous conditions of the modern world,” cannot be used today to deem the wishes of a population to be of no legal weight. On the contrary, current international law requires that, to the extent that the Mandate system continues to be relevant to a particular territory, it must be reinterpreted to dictate the implementation of self-determination for the population...It is the Levy Commission’s seeming ignorance of such decisive legal developments which enables it to have recourse to such dusty artifacts of imperial history as the San Remo Resolution.

Hello?  The Mandate system of the League of Nations provided for the local population by establishing countries, well, mandates for the same, in Syria and Lebanon (one unit; now there's a historical joke) and Mesopotamia, i.e., Iraq, with knowledge that other Arabs countries already existed.

Prof. Berman, international jurists, lawyers, diplomats, etc. all ignored the right of self-determination for "Palestinians" because there was no such people.  They even admitted so and denied their existence, demanding into the 1920s to be united with Syria.

And so, to apply retroactively and anachronistically a concept of post-modern cultural creationism, that there is or even was a "Palestinian people" that should have then or even now benefit from the 1918-1922 deliberations, and ignoring the Feisal-Weizamnn (temporary) agreement, is, well, a bit of a sleight-of-hand illegality.  And, as a Jew, to snidely slip in "racism" is immoral as well.

_________________

UPDATE

From Sari Bashi's Israeli Committee Declares End to West Bank Occupation

Bashi is the executive director of Gisha] 

...While predictably, progressive jurists and many from the intellectual left inside Israel vilified the report (see this editorial by Israel’s respected Haaretz daily), others, myself included, appreciate the report’s revolutionary potential. Well, maybe revolutionary is too strong a word, but for those of us troubled by the transfer [Sari, there was no transfer - YM] of 350,000 Jewish settlers into the West Bank (exclusive of east Jerusalem)...the de facto annexation of large swaths of the West Bank, the report unmasks the comfortable lie that Israeli government lawyers have told the courts and the rest of the world for decades, namely that Israel’s presence in the West Bank is temporary and that measures designating Palestinian land and natural resources for Israeli use are motivated by security concerns...

...I enthusiastically endorse its candor......The Levy Committee tells it like it is. And in telling it like it is, it pushes Israelis to decide: Do we want to adopt the committee conclusions, which endorse exercising sovereignty over the West Bank while denying its 2.6 million Palestinians not just the rights of citizens but even – the basic protections of the Fourth Geneva Convention? Or do we want to preserve Israel as a democratic state by ending four and half decades of control over 4 million Palestinians, in the West Bank and Gaza, who have a right to freedom from foreign rule?

Sari, first sovereignty, then, better than the Pal. Authority, the Arab residents, as citizens or not, will be better treated.  More rights, freedoms and liberties in all spheres of life.

^

________________

UPDATE

From Dore Gold:-

Levy's committee has restored Israel's legal narrative about its rights in the West Bank. There are those who charged that in rejecting the application of the term "occupation" to the Israeli presence in the West Bank, the Levy committee's report will set the stage for eventual Israeli annexation of the territories. Of course these concerns are baseless. The report of the Levy committee says absolutely nothing about what political solution for the future of the West Bank is desirable. 

Israel is not going to persuade its international critics to change their views on the status of the territories. Nonetheless its conclusions are still important for one diplomatic scenario, in particular: a negotiated end of the Israeli-Palestinian conflict in the future. For at the end of the day, there is a huge difference in how a compromise will look if Israel's negotiating team comes to the peace table as "foreign occupiers," who took someone else's land, or if they come as a party that also has just territorial claims. The Levy Report is first of all for Israelis who need to understand their rights which unfortunately have been forgotten since the days of Abba Eban and Chaim Herzog.

Levy's discourse is relevant for the Palestinian side in one important respect. If the Palestinians are constantly fed by the international community the "occupation" narrative, their propensity to consider making a real compromise, which is critical for any future agreement, will be close to nil. In fact, this false narrative only reinforces their mistaken belief in the delegitimization campaign against Israel as an alternative to seeking a negotiated settlement of the conflict. Rather than creating a setting for diplomacy to succeed, it only makes a real Middle Eastern peace more remote than ever.

^