Friday, March 7, 2014

Salubrius: Why People Think that the Jewish Settlements in Judea and Samaria are Illegal and Why They Really Aren't

 
by Salubrius


Following WWII a large number of small territories became decolonized and became states. This added a large number of very small states to the UN. With one state, one vote, (no matter what the size of the state) these additions permitted the Afro-Asian and Soviet blocs to dominate the vote in the UN General Assembly. But the UNGA only recommended – it was not intended to be a world legislature. If all parties in dispute agreed, they could sign a treaty. That would be International Law.

Russia had turned against Israel because it saw Israel as a barrier to its domination of the oil of the Middle East, and, as a consequence to hegemony over Western Europe. It tried to exploit the Arab hatred of the Balfour Declaration, the Palestine Mandate and the existence of Israel. It was able to enact in the UN a resolution promoting the "inalienable rights of the Palestinian People" without any examination of whether there was a Palestinian People or what their rights were and then was able to form a UN "Committee for the Exercise of the Inalienable Rights of the Palestinian People’. The committee commenced writing a report entitled Origin and Evolution of the Palestine Problem relying on work of an Arab Lawyer named Henry Cattan who had been a member of the Arab Higher Committee. That committee had been led by Haj Amir al Husseini the grand mufti of Jerusalem. Husseini had been a friend of Adolph Hitler. He told the Germans that if they wanted to reward him for his help, they could, when they prevailed in WW2, give him permission to liquidate all the Jews in Palestine.

Cattan had also represented the Arabs in the 1947 UNSCOP hearings. His work, and that of his friend W.T. Mallison was relied on in the first part of Origin and Evolution etc. covering 1917 to 1947. In 1979 his friend Mallison, who had written the foreword of Cattan's book "
The Palestine Problem", at the request of the UN Committee, wrote a legal opinion based on the Major Resolutions of the UN General Assembly. It concluded that the Jews were, under international law, engaged in illegal occupation of Judea, Samaria, East Jerusalem and Gaza. However their opinion was not based on genuine International Law as the Resolutions of the General Assembly are mere recommendations. They can only become International Law if the recommendations are accepted by all parties and all parties sign a treaty incorporating the recommendations. This wasn't done with the Partition Resolution. Nonetheless, Mallison's opinion was published in pamphlet form by the Committee and it received wide publicity. An Australian lawyer named Julius Stone, widely acclaimed as an authority on international law, was so outraged by the gross distortion of international law that he published a criticism of it entitled: Israel Palestine: Assault on the Law of Nations.
 
He showed that the Resolutions the opinion were based on were not International Law but mere recommendations that died at birth when the Partition Resolution, No. 181 of 1947 died at birth because it was rejected by the Arabs. Stone also showed that it was pretty far fetched to believe that any group claiming to be a people could empower the UN to redraw the boundaries of a sovereign state. He showed that the Jewish People already had sovereignty based on the San Remo Resolution and the Palestine Mandate. Long before the time the natural law on the selfdetermination of a people had been adopted as international law, the British Policy to recognize Jewish political self-determination in Palestine had evolved into international law. It became law first at San Remo, and then as the Palestine Mandate, a treaty approved by 53 states. That was to give the Jews initially an equitable interest in the political rights to Palestine. It gave them the right to close settlement on the land, but placed the rights in trust until the Jews were able to muster a majority, by immigration from the diaspora. When the Jews were in the majority, and could carry out the obligations of sovereignty, the political rights, carrying with them the right of establishing a Jewish Government, would vest in World Jewry. You can find the details of all of this in an opinion I have prepared entitled Claims of the Jewish and Arab People to the Right of Self-Determination in Palestine. Archived SSRN.com/abstract=2385304

First, treaties, and second, long standing practices accepted by most states are the stuff of international Law. Mallison tried to cram into the second category the partition of Palestine even though states barely approved the Partition Resolution with the aid of the Russian bloc and soon thereafter Russia had turned against the Partition. After WW2 the rights of a people to self-determination that had been only natural law, became adopted as international law in the 1970s.

However in each instance, the lawyers inserted in this legislation the legal code words "sovereign equality" that meant that the territorial integrity of each sovereign state must be preserved. That caution was ignored in Mallison’s opinion coming out of the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People. So when the Palestinian People assert their inalienable rights to selfdetermination, they will find doing so will interfere with the rights of territorial integrity of a preexisting state, the Jewish People’s state and that right is paramount. Russia also pushed the view that Jewish settlements were outlawed by the 4th
Geneva Convention that
prohibited states from deporting or transferring people. But it wanted to apply this theory to people who weren’t being transferred – they had decided themselves they wanted to move and it would violate their human rights to prevent them. And in any event the land designated to be kept clear was land under a "belligerent occupation" that had had a legitimate sovereign, not just any land under a Military Occupation. And the land had been liberated by Israel in 1967 in a defensive war was from an illegal occupier, Jordan, who had gained it in an aggressive war in1948. Israel’s occupation was not a "belligerent occupation". In 1967 it still owned the political rights to all Palestine west of the Jordan. Jordan was not a legitimate sovereign over territories on the west bank of the Jordan River and wasn’t recognized as such even by the members of the Arab League.


Russia is now cooking on the front burners and will
likely come up with still another reason that the land belongs to the Arabs or anyone but the Jews. Just look at the stories they are cooking up in the Ukraine.

Salubrius (Wallace Brand)


Source: SSRN.com/abstract=2385304   

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

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