...I too pointed out in my book as well as in a letter to Yisrael Medad dated June 21, 2008 and written six months prior to the book’s publication, that Article 42 of the Hague Regulations must be read in conjunction with the heading just above it, which reads: “Military Authority Over The Territory Of The Hostile State” (the reference to it in my book is on page 238 and footnote 20).
Since Judea and Samaria were never a legally recognized part of Jordan under international law, it cannot therefore be concluded or inferred, as is done erroneously in UN Security Council Resolution 242, that Israel “occupies” the sovereign territory of Jordan or of any other entity. Jordan was never the legitimate sovereign of what it called its “West Bank”, a term that should be avoided because it implies Jordanian sovereignty over the land – which Jordan never legally had.
Judea and Samaria were captured and occupied by Jordan in its illegal war of aggression against newly-born Israel (1948-1949) that gave it absolutely no legal title whatsoever to this territory – in accordance with the well-known legal maxim: jus ex injuria non oritur [a right does not arise out of a wrong]. Thus, Israel’s liberation of lands that were legally designated in 1920 and 1922 for the Jewish National Home (i.e., Judea, Samaria and Gaza, as well as – in my opinion – the Golan Heights and the Sinai Peninsula that were illegally excluded from the Jewish National Home by Britain and France) does not in any way fall within the definition of “occupation” under Article 42 of the Hague Regulations.
...[he] repeats as if they were the gospel truth the false statements put out by the anti-Israel International Court of Justice on Israel’s so-called occupation of Judea and Samaria. The Court’s biased composition, as well as the pro-Arab terms of reference and documents submitted for its adjudication, ensured without a shred of doubt, that it would condemn Israel for building a security fence, stigmatize it as an occupier of Judea and Samaria and furthermore declare all settlements “illegal” As evidenced by their unfounded judgment, these judges know nothing about the true meaning of the San Remo Resolution and the exclusive national rights to Palestine bestowed on the Jewish People. This resolution was indeed the Magna Carta or Charter of Freedom of the Jewish People and the Zionist Movement. The Court’s knowledge of what constitutes “occupation” in the particular case of Palestine (not the “Palestine” invented by Yasser Arafat and the Arab states) needs considerable revision.
...[he] also relies on the UN Security Council, the UN General Assembly, the US State Department and especially the Israeli Supreme Court to bolster his argument that Israel “occupies” enemy land, belonging to the Arabs, to which the State of Israel has no legal right, even though the land in question is now and has always been part of the Jewish National Home under international law as first approved by the Allied Supreme Council in 1920 and then confirmed by the Council of the League of Nations in 1922.
Moreover, as just noted, any objective reading of Article 42 of the Hague Regulations refutes the erroneous contention that Judea and Samaria are Arab-owned land under that provision of law. Since Israel is not an “Occupying Power” occupying a foreign sovereign’s land, as is required by the definition of “occupation” in the above-mentioned Article 42, the laws of war are not applicable to it, and it can therefore settle Judea and Samaria in accordance with the right it derives from Article 6 of the Mandate, a right that survived the termination of the Mandate. My own position, if you have taken the time to read my book (which it appears you have not done), is that separate and apart from any reference to the laws of war, Israel is in fact the de jure sovereign of all the Land of Israel, including Judea and Samaria, a title it inherited as the agent and assignee of the Jewish People as a result of the San Remo Resolution of April 25, 1920 which implicitly bestowed that coveted title on World Jewry.
In regard to the Supreme Court of Israel...it is true that our highest Court has decided cases involving Judea and Samaria on the basis that these integral regions of Eretz-Israel are governed by the rules of belligerent occupation, as laid down in two military proclamations issued in June 1967 on the wretched advice of Meir Shamgar, proferred to the Levi Eshkol National Unity Government that included Menahem Begin and the Gahal Party he headed before it became Likud. However, the Court’s acceptance of the applicability of the laws of war embodied in the Hague Regulations and the Fourth Geneva Convention is not because they reflect the actual legal status of Judea and Samaria under international law, but only because the Government of Israel has voluntarily and stupidly agreed that the Court can render its judgments on the uncontested premise that Israel agrees to observe those laws regardless of and without prejudice to the true legal status of Judea and Samaria.
Israel’s voluntary compliance with the rules of belligerent occupation is, you may conclude, Israel’s free gift to the Arab world and to all other “Israel-haters” and deniers of Israel’s true rights to Eretz-Israel. The Supreme Court, to its everlasting shame and discredit has simply adopted the Government’s policy position of compliance that conflicts with existing Israeli constitutional law, without ever independently determining on its own the actual merits of that position.
...Shamgar suffered an inexplicable blackout when he advised the Eshkol Government to adopt that regime, originally on a voluntary basis, but which has now unfortunately become embedded in Israeli jurisprudence even though it flies in the face of previous constitutional legislation enacted in 1948 and thereafter. This has caused never-ending enormous damage to Israel’s rights to Judea and Samaria.
I refer you to three of my articles that deal with this question in greater depth – that you can locate on the Think-Israel website:
1. The Question of the Applicability of the Fourth Geneva Convention on Occupation to Judea, Samaria and Gaza (March-April 2009);
2. Is Israel Occupying the West Bank? (The title was given by Think-Israel; I do not use this term because, as noted above, it denotes Jordanian sovereignty.)
Part 1: A Legal Discourse on Occupation
Part 2: The Occupation of Yesha: A Legal Assessment (July-August 2007);
3. The Origin of the Occupation Myth (Nov.-Dec. 2005).
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