A Letter to the NY Review of Books Not Published

Sent August 22:

Commenting on Israel's presumed 'vulnerability' regarding the legality or illegality of civilian Jewish residency communities ("settlements") in the "West Bank", a new geopolitical term created in 1950, territory the United Nations termed Judea and Samaria in its 1947 Partition Plan, David Luban, Georgetown Professor in Law, writes in "America the Unaccountable" that "[t]ransferring your own people into occupied territory violates the Geneva Conventions". He pursues this by adding that "Israel has devised an arcane legal theory that it never occupied the West Bank, but it is fair to say that nobody outside Israel and the US takes that position seriously" [NYR Aug 20].

The international legal experts who do not agree with that thinking, among them Stephen M. Schwebel, Eugene Rostow, Abraham Bell and Eugene Kontorovich and many others, point out that the actual language in the 1949 Geneva Convention is "forcible transfers", that "Palestine" never existed, nor does it at present exist, as a "state", that indeed Israel is a "belligerent occupier", quite a proper legal status and that the non-arcane legal  doctrine of Uti Possidetis Juris applies -  in which the territorial sovereignty of emerging states covers their pre-independence administrative boundaries - as does United Nations Article 80 as well.  Moreover, the IJC's 2004 advisory opinion does not hold "that the [Israel–Palestine] boundary is 'subject to such rectification as might be agreed upon by the parties'" as Luban writes. Quite to the contrary, a "Demarcation Line" was to be subject to rectification (see para. 71), a line that the 1949 Armistice Agreement specifically stated in Article IV, 9 that "Lines...of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto".

As someone who lives in such a community, I think that Luban could have noted that the Arabs of Mandate Palestine refused the offer of a state in 1947, consistently rejected diplomacy (the Khartoum 3 Noes), that they had been engaged in an anti-Jewish terror campaign since 1920 which has never stopped until this day and that they ethnically cleansed all Jews from this area intended to be reconstituted as the Jewish "national home" due to the Jews' "historic connection" to it, as the League of Nations decided in 1922. Some of those families had been living in that territory for centuries. Luban could, even in passing, had referred to the 1967 war when Israel, threatened with aggression, came into administrative possession of Judea and Samaria (and until 2005, Gaza as well) as a defensive war. Had he done so he would have provided a better, indeed, a more philosophical framework to judge the matter.

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