Thursday, March 11, 2010

Legal, Illegal, Legal

The son of Eugene Rostow provides us with another article on the issue of the legality of Jewish residency in Judea and Samaria, and Gaza. Nicholas Rostow is university counsel and vice chancellor for legal affairs of the State University of New York.


Are the Settlements Illegal?

...There is, however, one element of debate we could do without: namely, the debate over the legality of the settlements under international law...The issue of legality is a staple of discussion—or rather, of assertion—at the United Nations and elsewhere. The International Court of Justice (a principal UN organ) categorically opined that Israel’s settlements are illegal in 2004. Few UN member states view Israeli settlement activity as legal, but equally few interpret UN Security Council Resolution 242 of November 22, 1967 as it was intended. The legal issue has troubled U.S.-Israeli relations in the past...

...From 1511 to 1917, “Palestine” was part of the Ottoman Empire, although the term did not denote a defined people or area. What is today understood as Palestine geographically was not administered in Ottoman times as a single unit...On July 24, 1922, the League of Nations Council confirmed the Mandate.

The Mandate explicitly stated that the Mandatory Power was responsible for putting into effect the Balfour Declaration in favor of a Jewish national home in Palestine. The Declaration and the Mandate formed part of the same international law that gave birth to the notion that self-determination is a right. Thus, opponents of the existence of Israel always have attacked the Balfour Declaration and the Mandate because these documents recognize that Jews have a right of self-determination in Palestine and accept “the historical connection of the Jewish people with Palestine and . . . the grounds for reconstituting their national home in that country.” The Mandate contemplated that Jewish immigration was to be facilitated and Jewish settlement was to be encouraged, “it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”...Article 80 of the UN Charter, known in 1945 as the “Palestine” Article, carried this body of international law forward to the UN Charter era.

... the United States has consistently regarded the precise legal status of the West Bank and Gaza as unresolved—including the question of whether East Jerusalem is considered part of the West Bank. It has always recognized the 1949 armistice lines as provisional, not legally final, borders...

Some scholars argue that the West Bank and Gaza are the unallocated remainder of the League of Nations Mandate; others write that they are a trust for the “Palestinian people” (whose definition also is the subject of controversy)...When the International Court of Justice opined in 2004 that Israeli settlements were illegal it did not simultaneously opine that the Armistice Demarcation Lines constituted Israel’s final, international borders.

The argument over the legality of the settlements is based principally on interpretations of the Fourth Geneva Convention of 1949 (Relative to the Protection of Civilian Persons in Time of War)...the Six-Day War of June 1967 was, for Israel, a lawful exercise of the inherent right of self-defense recognized in Article 51 of the UN Charter. As a result, Israel’s occupation of territory beyond the Armistice Lines was a result of aggression by its neighbors. Second, the United States and other governments were determined not to repeat what they believed to have been a mistake in 1956–57, when, under international pressure, Israel withdrew from the Sinai Peninsula without a peace agreement with Egypt...

...settlements elsewhere did not become a major issue until after Menachem Begin became Prime Minister in May 1977...the Johnson Administration [had] criticized early Israeli settlement activity as possibly inconsistent with Israel’s publicly stated position that all subjects in dispute were negotiable. But it did not assert that such activity was illegal.

Nixon Administration statements invoked the Geneva Convention as applying to the
territories...The Ford Administration did not alter this view. The Carter
Administration, however, focusing for the first time on the occupied territories as a whole, more explicitly than its predecessors took the position that all settlements were illegal under international law. In 1978, the State Department
Legal Adviser wrote Congress to that effect, and the United States voted in favor of General Assembly and Security Council resolutions that described the settlements as illegal. However, in testimony to Congress in 1980, Secretary of State Cyrus Vance was forced to repudiate a U.S. vote for a Security Council resolution that called for the dismantling of settlements.

On February 2, 1981, President Reagan stated that the settlements were “not illegal”,
although he criticized them as “ill-advised” and “unnecessarily provocative.”
Throughout the Reagan Administration the U.S. government did not question the
legality of the settlements; rather, it criticized the settlements on policy grounds...

...Several arguments have been advanced on behalf of the proposition that Israeli settlements are lawful...First, advocates of legality reject the applicability of the Geneva Convention on the ground that, under Article 2, the Convention applies only to occupation of the “territory of a High Contracting Party.” They argue that no country has a recognized legal claim to the “occupied territories.” Consequently, they are not territories “of” any contracting part...Second, some argue that, even if the Geneva Convention does apply, it was not directed at the kind of activity undertaken by Israel. The argument, made notably by the late Morris Abram, who was on the U.S. staff at Nuremberg, is that Article 49 of the Geneva Convention responded to the Nazi experience and is directed at transfers of large populations into occupied territories intended to colonize territories so as to endanger the economic situation or separate existence of the existing populations. Proponents of this view argue that the nature and extent of Israeli settlements in the West Bank do
not threaten the native population and therefore would not violate the Geneva
Convention even if it applied.

A third argument is that even if the Geneva Convention applies and prohibits settlements established by the Israeli government, it does not prohibit Jewish settlements in the occupied territories. The argument is that the Palestine Mandate granted extensive rights to Jews in Palestine and that, until the final status of a particular area is resolved, there is no legal basis for barring Jews from settling there. Rather, the occupied territories are to be thought of as the unallocated remainder of the Mandate Territory, and settlement rights under the Mandate persist until a final allocation is made. Proponents of this argument point to Article 6 of the Mandate, which provides that ‘‘[t]he 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 . . . close settlement by Jews on the lands, including State lands and waste lands not required for public purposes.”

A fourth argument addresses the competing claims of Israel and the other Arab states. It cites the principle of law that, where a prior holder of territory had seized that territory unlawfully (in this case, Jordan), the state subsequently taking the territory in lawful exercise of self-defense has, against the unlawful prior holder, better title...A fifth argument is based on the historical claim of Jews to live in Palestine. Proponents of this argument, which arguably is not a legal
one, trace the history of the region back to biblical times and assert that the Jews have had a continuous presence in the area and have a superior historical right to it.

...Although not all the arguments advanced for and against legality are strong, legal arguments on both sides are durable on what are central points of contention. It therefore makes little practical sense to raise the profile of the issue of legality, for it would only add an insoluble element to what is already an extremely difficult problem. The best approach for the United States is to do what it can to advance the cause of peace between Israel and all its neighbors, and to assist the parties in the resolution of all the issues that divide them on the basis of rights for all, Israelis and Palestinians. The U.S. government has a pressing interest in the resolution of these issues but, to succeed, a solution must reflect the parties’ acceptance of the need for peace. We cannot wave a wand a make them see the light. That position fairly describes the view of most U.S. administrations since 1967 and
can therefore be said to accord with precedent. It is the wisest course.

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