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June 24, 2009
The Israeli Settlements: Whose Land Is It Anyway?
According to the Washington Post, it all seems very cut and dried:Thirty years ago, the State Department legal adviser issued an opinion in response to an inquiry from Congress: The establishment of Israeli settlements in occupied Palestinian territories "is inconsistent with international law."Unfortunately, the article is incomplete insofar as it fails to provide the other side of the argument. While the article mentions in passing that Israel does not believe the Geneva Convention is applicable to the issue of the settlements, at no point does the article address the basic question: "why not?"
The opinion cited Article 49 of the Fourth Geneva Convention, which states that an occupying power "shall not deport or transfer parts of its own civilian population into the territory it occupies." Israel has insisted that the Geneva Convention does not apply to settlers and broadly contests assertions of the settlements' illegality.
Despite the passage of time, the legal opinion, issued during the Carter administration, has never been revoked or revised...
..."As far as I know, I don't think it has ever been rescinded or challenged by any legal officer of the United States government," said Herbert J. Hansel, the former legal adviser who wrote the opinion. "Ronald Reagan expressed his opinion. But whatever you think of him, he was obviously not a lawyer. It still stands as the only definitive opinion of the U.S. government from a legal standpoint."
the Occupant's acts will not have legal effect, although they may in fact be unchallengeable until the territory is liberated. He is not entitled to treat the country as his own territory or its inhabitants as his own subjects...However, in that very same book Stone himself writes that the attempt to claim Israel's settlements illegal is a "subversion. . . of basic international law principles."
Stone addressed this issue in another book, International Law and The Arab-Israel Conflict. An extract of the book is available online [PDF].
Stone describes there Israel's rights vis-a-vis the West Bank:
International law, therefore, gives a triple underpinning to Israel's claim that she is under no obligation to hand back automatically the West Bank and Gaza to Jordan or anyone else. In the first place, these lands never legally belonged to Jordan [because its grabbing the land in 1948 was never recognized]. Second, even if they had, Israel's own present control is lawful [because Israel fought a defensive war], and she is entitled to negotiate the extent and the terms of her withdrawal. Third, international law would not in such circumstances require the automatic handing back of territory even to an aggressor who was the former sovereign. It requires the extent and conditions of the handing back to be negotiated between the parties.The crux of Hansell's argument is
Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 UST 3516, provides, in paragraph 6:Hansell also addresses the fact that Egypt's and Jordan's occupation of Gaza and the West Bank had no legal standing:'The Occupying Power shall not deport or transfer parts of its ownParagraph 6 appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary.
civilian population into the territory it occupies'.
It has been suggested that the principles of belligerent occupation, including Article 49, paragraph 6, of the Fourth Geneva Convention, may not apply in the West Bank and Gaza because Jordan and Egypt were not the respective legitimate sovereigns of these territories. However, those principles appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of those territories. Protecting the reversionary interest of an ousted sovereign is not their sole or essential purpose; the paramount purposes are protecting the civilian population of an occupied territory and reserving permanent territorial changes, if
any, until settlement of the conflict.
"to cases of ... occupation of the territory of a High Contracting Party, by another such Party".
It is clear that in the drafting history, Article 49 as a whole was directed against the heinous practice of the Nazi regime during the Nazi occupation of Europe in World War II, of forcibly transporting populations of which it wished to rid itself, into or out of occupied territories for the purpose of liquidating them with minimum disturbance of its metropolitan territory, or to provide slave labour or for other inhumane purposes.
[whereas]...Israel's position in Judea and Samaria (the West Bank) is merely that of an occupying power...
Stone quotes What Weight to Conquest? by Professor Stephen Schwebel--an American jurist and expert on international law who served at various positions in the U.S. Department of State, Legal Adviser Office and was a member of the UN International Law Commission. He was elected to the International Court of Justice in and was re-elected twice, and served as the President of the Court. Schwebel writes that the UN Charter--
makes necessary a vital distinction "between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held":Again, Hansell never addresses this key issue of who has the better title to the territory--and today, as per the Peace Treaty of 1994, Jordan has already relinquished any claim of sovereignty over the West Bank--which is why Israel has also argued that the change in the situation necessitates a reevaluation"Those distinctions may be summarized as follows:
a) A state acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence.
b) As a condition of its withdrawal from such territory, that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use force against it of such a nature as to justify exercise of self-defence.
c) Where the prior holder of the territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title."
Why Does The Goldstone Commission Report Rely On Contradicting Testimony?
On a foundation of sand
Kemp vs. goldstone
The Goldstone Commission: A Funny Thing Happened On The Way To Gaza
Garlasco hits the fan
Israel deploys WorldNetDaily against Iran!
Have you forgotten?
Slapping the outstretched hand
Turki stuffing
Fadlallah clarifies that Israel's existence is the issue
The prohibition on the settlements amount to a form of international racism legislated against Jews. In no other case of occupation post World War II, has such a prohibited been cited. It should be pointed out Jews living in Yesha and Jerusalem have not killed, pillaged or done anything to change the status quo of the area to which Israel has yet to exercise a valid claim of sovereignty, yet their existence is viewed as an obstacle to peace. The irony is that since World War II, the Jews have come to be seen as the problem rather than the one party to the conflict that has a better title as a claimant under international law than all the others to Yesha. To resolve this question, it is essential to at least annex those parts of Yesha inhabited by Jews.
Posted by: NormanF at June 24, 2009 8:50 AMIt should be pointed out Jews living in Yesha and Jerusalem have not killed, pillaged or done anything to change the status quo of the area to which Israel has yet to exercise a valid claim of sovereignty
Apropos of that, Stone writes:
If and insofar, therefore, as Israel's position in Judea and Samaria (the West Bank) is merely that of an occupying power, Article 49 would forbid deportation or transfer of its own population onto the West Bank whenever this action has consequence of serving as a means of either:
(1) impairment of the economic situation or racial integrity of the native population of the occupied territory; or
(2) inhuman treatment of its own population.
Impairment of Racial Integrity of the Native Population of the Occupied Territory
The prominence of the question of legality of Jewish settlements on the West Bank reflects the tension of the peace process, rather than the magnitude of any demographic movement. Despite vociferous political warfare pronouncements on both sides, it seems clear, therefore, that no serious dilution (much less extinction) of the separate racial existence of the native population has either taken place or is in prospect. Nor do well-known facts of dramatic improvement in the economic situation of the inhabitants since 1967 permit any suggestion that the situation has been worsened or impaired�
Inhuman treatment of its own population
On that issue, the terms of Article 49(6) however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6) designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that Judea and Samaria the West Bank must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.
Posted by: Daled Amos at June 24, 2009 10:46 AM