Saturday, October 16, 2010

More To That Legal Theme

Found in a report by Ethan Bronner:

Virtually the entire international community opposes the settlements. The vast majority of governments accept what the United Nations and the International Court of Justice in The Hague have declared — that the settlements violate international law. Israel says they are lawful because the Palestinians were not sovereign in the West Bank when it was conquered from Jordan in 1967. The United States and Japan take no stand on the settlements’ legality, according to spokesmen of their embassies in Israel, although they oppose them on policy grounds.

That reasoning is insufficient.

Here are some additional considerations:

a) The right of Jews to settle in all parts of the Land of Israel was first recognized by the international community in the 1922 League of Nations Mandate for Palestine. The purpose of the Mandate was to facilitate the establishment of a Jewish national home in the Jewish people's ancient homeland. Indeed, Article 6 of the Mandate provided for "close settlement by Jews on the land, including State lands not required for public use."

For more than a thousand years, the only time that Jewish settlement was prohibited in the West Bank was under the Jordanian occupation (1948-1967) that resulted from an armed invasion. During this period of Jordanian rule, which was not internationally recognized, Jordan eliminated the Jewish presence in the West Bank (as Egypt did in the Gaza Strip) and declared that the sale of land to Jews was a capital offense. It is untenable that this outrage could invalidate the right of Jews to establish homes in these areas, and accordingly, the legal titles to land that had already been acquired remain valid to this day.

b) Attempts have been made to claim that the settlements violate Article 49 of the Fourth Geneva Convention of 1949, which forbids a state from deporting or transferring "parts of its own civilian population into the territory it occupies." However, this allegation has no validity in law as Israeli citizens were neither deported nor transferred to the territories.

Although Israel has voluntarily taken upon itself the obligation to uphold the humanitarian provisions of the Fourth Geneva Convention, Israel maintains that the Convention (which deals with occupied territories) was not applicable to the disputed territory. As there had been no internationally recognized legal sovereign in either the West Bank or Gaza prior to the 1967 Six Day War, they cannot be considered to have become "occupied territory" when control passed into the hands of Israel.

Yet even if the Fourth Geneva Convention were to apply to the territories, Article 49 would not be relevant to the issue of Jewish settlements. The Convention was drafted immediately following the Second World War, against the background of the massive forced population transfers that occurred during that period. As the International Red Cross' authoritative commentary to the Convention confirms, Article 49 (entitled "Deportations, Transfers, Evacuations") was intended to prevent the forcible transfer of civilians, thereby protecting the local population from displacement. Israel has not forcibly transferred its citizens to the territory and the Convention does not place any prohibition on individuals voluntarily choosing their place of residence. [see here] Moreover, the settlements are not intended to displace Arab inhabitants, nor do they do so in practice.

That was from here.

From here:

c) The territory of the West Bank and Gaza Strip was captured by Israel in a defensive war, which is a legal means to acquire territory under international law. In fact, Israel's seizing the land in 1967 was the only legal acquisition of the territory this century: the Jordanian occupation of the West Bank from 1947 to 1967, by contrast, had been the result of an offensive war in 1948 and was never recognized by the international community, including the Arab states, with the exception of Great Britain and Pakistan.

And this:

d) Professor Eugene Rostow, former Under-Secretary of State for Political Affairs has written: "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there" (AJIL, 1990, vol. 84, p.72).

And this:

e) former U.S. State Department Legal Advisor Steven Schwebel, who also headed the International Court of Justice at The Hague, further support Israel's position. In 1970, three years after the UN passed Security Council Resolution 242, Schwebel argued that "Israel has better title in the territory that was Palestine, including the whole of Jerusalem (emphasis mine - D.D.), than Jordan and Egypt."



Your Correspondent said...

Of perhaps greater importance is the San Remo Conference of 1920. This is the original legal decision to assign the Palestine Mandate to Great Britain. This instrument was adopted by the League of Nations. It cannot be refuted as it also created Syria and Iraq.

The text is here.

See also this analysis, which discusses Palestine/Israel in greater detail.

YMedad said...

Sorry, but while the San Remo Conference is important as an indication of the intent of the Great Powers as regards allocating Palestine to England, it had not legal standing whatsoever.

mrzee said...

Under the Oslo Accords, Israel is in Judea and Samaria with the consent of the Palestinian Authority until a final status agreement. In fact, in Areas B and C the Israeli military is required for security. That can hardly be described as "occupation" any more than US presence in South Korea.