Sunday, May 16, 2010

A Nation of “Illegals”?


by Moshe Dann

Although many substantive legal arguments support the right of Jews to build in Judea, Samaria (the West Bank) and the eastern part of Jerusalem, Israeli communities are accused of being "illegal" according to "international law". But, what is this "law" and who decided that Israel was guilty?

UN resolutions are not laws, or sources of laws. The UN's primary judicial organ, the International Court of Justice (ICJ) issues advisory opinions which are only recommendations, and, although they are influential, are not proper legal decisions. Unable to get a fair hearing before the ICJ, Israel does not appear there.

In fact, the UN Charter (Article 10) does not grant the General Assembly, or the ICJ the authority to determine the ownership of disputed territories – although it does so anyway.

"The law" is the Fourth Geneva Convention (GC IV)  – one of the most important sources of conventional international and humanitarian law. The International Committee of the Red Cross (ICRC), the official "guardian" of the GC IV, met secretly at their headquarters in Geneva in 1971 and unilaterally decided that Jewish communities built in areas acquired after the Six Day War were actually "illegal" because they "violated" GC IV. Because ICRC rulings are considered authoritative, they are used by the international community to condemn Israeli "settlements," and "occupation."

The legal status of Palestine, designated as the "Jewish national homeland," was established by the League of Nations (1920), the San Remo Agreements (1920) and the British Mandate (1922), and endorsed by the US Congress; that was "the law," and remains so today, despite the ICRC.

ICRC and UN Resolutions declared that "Israeli settlements are illegal." They didn't say, however, to whom this territory belongs. Palestinian leaders have said they will declare sovereignty and ask for UN recognition. But, with the Palestinian Authority (PA) divided between Fatah and Hamas, its leadership shaky, who rules? And who will rule in the future?

Arab leaders themselves can't decide about a second Arab Palestinian state (the first was Transjordan, established in 1921, two-thirds of whose population is Palestinian) since that means accepting Israel. However, none are willing to give up the "Palestinian right of return," in other words, the control of eastern Jerusalem and the elimination of settlements.

UN recognition of the PLO, beginning in 1974, six months after it massacred school-children in Ma'alot, provided legitimacy, but the PLO – "the sole representative of the Palestinian people" — has rejected the "two-state-solution" as an end-of-conflict. Its charter, calling for the elimination of Israel by force, remains unchanged.

The Oslo Accords (1993), Hebron Agreement (1997), Wye River Accords (1998) and Gaza Disengagement (2005), which gave the PA large areas of Judea, Samaria and all of Gaza and placed nearly all Arab residents of these areas under PA rule, provided the basis for self-government, and eventual statehood.

Legal questions regarding Jewish presence in Judea, Samaria and eastern Jerusalem remain; the ICRC's decisions, therefore, are crucial. Since ICRC deliberations and protocols are secret, however, there is no way of knowing how they arrived at their decisions, nor is there any possibility of appeal.

The ICRC's unique interpretation, contrary to the obvious intent and purpose of GC IV, was designed specifically to thwart Israeli settlements. It was never applied in a comparable situation elsewhere.

Opposing Jewish communities in Judea, Samaria and Jerusalem may be politically expedient, a convenient charge to indict Israel, but assaulting their legality is baseless. Many prominent jurists and the Israeli government have rejected charges of "illegality" and "occupation," arguing that the provisions of GC IV do not apply, and that, at best, these areas should be called "disputed," subject to negotiations.

Despite the ICRC's refusal to open its archives and explain itself, in defiance of all democratic and judicial norms of conduct, accountable to no one, and deliberately distorting facts, their decisions are widely accepted as law. We need to know how and why the ICRC made those decisions. What are they hiding, and why?


Moshe Dann is a writer and journalist living is Israel.

Copyright - Original materials copyright (c) by the authors.



Salubrius said...

The issue of whether the settlements violate the Fourth Geneva Convention is principally due to a questionable opinion of Theodore Meron, Legal Advisor to the Israeli Ministry of Foreign Affairs in September, 1967 in which he relied unduly on a statement by the International Red Cross as to the legislative purpose of the convention rule against transfers of population.

The Red Cross had stated, prior to 1967, that:

This clause was adopted after some hesitation, by the XVIIth International Red
Cross Conference. It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race. scroll down to "Settlement in the Administered Territories, 18 September 1967": 1967 Meron opinion (pdf; 26kb)
Others, looking at the same legislative history found that the transfers to be prohibited were only forced transfers compelled by the occupying power. The prohibition of the Convention would prevent Israel from compelling its citizens to move to another area for Israel's political reasons. It did not require Israel to prohibit that transfer if it were to be made voluntarily to serve the interests of the transferee, whatever their reasons, political, religious, or otherwise.

Meron, found the settlements violated the Geneva Convention. I and many other lawyers believe he was mistaken. Anti Zionists have taken great pleasure in referring to Judge Meron's opinion when discussing this question.

In any event, the West Bank is currently under de facto and de jure Jewish sovereignty according to the opinion of Canadian lawyer Howard Grief. See his excellent opinion including historical fact needed to understand it to be found in: "Legal Foundation and Borders of Israel under International Law." My son just bought me a copy for my birthday. So far, Israel has taken the view that no one had sovereignty over the West Bank after 1967. Howard Grief takes the view, and documents it well, that the 1920 San Remo Agreement gave the Jews collective political rights or sovereignty over Palestine. The agreement was ratified by the League of Nations that issued a mandate or trusteeship to implement it in which the Jews had a beneficial interest in the sovereignty over Palestine to be held in trust by England until the Jews were capable of exercising the sovereignty. After England abandoned its trusteeship in 1948, the Jews retained those interests under the International Law doctrine of "acquired rights" as codified in the 1969 Vienna Convention on Treaties, Article 70 1. (b). After the demise of the League of Nations, Article 80 of the UN Charter had preserved these rights.

A process-verbal drafted by the French is illustrative. The French wanted their understanding noted that the non-Jews in Palestine would not have lost any of their rights by the San Remo Agreement. They were correct. The Agreement expressly preserved the civil rights and religious rights of the non Jews but did not preserve their collective political rights to sovereignty. They couldn't because the local Arabs in Palestine never had any. The had always been ruled from afar. From 1520 to 1920 they were ruled by the Turks from Constantinople. From 1920 to 1948 they were ruled by the British from London. From 1920 to 1967 they were ruled by the Jordanians from Amman. They haven't lost any rights by being ruled by the Jews from Jerusalem. The individual right to vote in a democracy is a civil right that was preserved.

Anonymous said...

Thanks for upping

Tracy W said...

I can't count the times I've seen reference to the League of Nations Mandate as solid evidence of the legality of post-1967 Israeli borders. And yet, NOBODY does anything about it. Why?

Why is it that NOT A SINGLE ISRAELI has dared to test the legality of the American demand for partition in court?

Israeli governments have been silent about it. ALL OF THEM.

They are supposed to be on Israel's side! And yet they are siding with Arabs and Americans in their acceptance that Israel does not have the legal right to the territories. Thus taking the fatal first step into the dismemberment of their own country!

Right wing Israeli historians, writers, politicians, members of pro-land-of-Israel organizations.... they all make a brief reference to Israel's rights under the League of Nations Mandate and the San Remo Resolution, if at all, and then go on arguing about other issues that are direct consequence of Israel's failure to assert its sovereignty. They fail to go to the root of the issue.

I wish someone would explain to me why this is so.

Why the fear of doing the only thing that would put a stop to the assault not only on Israel's rights to the territories but on the legality of Israel itself!!!

Because this is not going to end with a Palestinian state - or even with the loss of eastern Jerusalem.

Arabs will continue to demand more and more. The PLO charter, the Fatah charter, and repeated statements by top PA and Hamas leaders have said it so: they believe that all of Israel is an occupation zone that must be liberated.

So, WHY the silence AND INACTION about Israel's key legal ammunition: international law documentation backing Israeli legal rights to the land?

Post a Comment