Sunday, November 16, 2014

The Definition of Occupation - an Interview with Atty Harel Arnon

by Shimon Cohen

The following is an interview with Attorney Harel Arnon for Women in Green. It was written by Shimon Cohen and translated from Hebrew by Sally Zahav. Originally published in the Sovereignty Journal, issue IV.

For many years, too many years, the legal-diplomatic arena has been surrendered to the Israeli Left, which exerted more than a small effort to fix in the Israeli and international consciousness that the communities in Judea and Samaria are against international law. A moment before the Israeli public accepted this determination as absolute truth, Attorney Harel Arnon and Dr. Hagay Vinizki took a stand, and a few months ago slipped a book into this legal vacuum, which is a collection of articles written by senior jurists who prove that the judicial truth is far from what had been implanted in our minds.

At the very beginning of the discussion with Attorney Arnon we asked how it could be that the report of the committee led by Judge Edmond Levy (obm) asserts that according to international law there is nothing that restricts Israel from holding the territories of Judea and Samaria, and despite this, leftist jurists proudly carry the banner of international law and scornfully reject any finding such as that of the Levy committee. Where does this confidence come from, we asked, is there something that they see and others don’t?

“The core problem is that ultimately, even from a formal point of view, it is not occupation.  It resembles occupation because there is a reality here of people who, according to your view have no citizenship”, says Att. Arnon, despite being a jurist who is careful to distinguish between the judicial arena and determining the truth and the commitment that stem from this. “If someone looks at things from a humanist point of view without knowing the history of the conflict he could say that even if you didn’t conquer the area from a sovereign state and therefore it is not occupation, nevertheless if it is as terrible as occupation and sounds like occupation then it is occupation. There is a population here that does not have equal rights and is under military control so in general, it is occupation. This is the strongest claim that, in my opinion, most of the world accepts and the claim that we are occupiers is based on this”.

Arnon does not minimize this claim despite the fact that it is not purely legal. “It is not only semantics because there is no doubt that one of the indications of occupation is that there is a population that is under your control but are not citizens of your country. This is not the only characteristic and the fact that not all of the other necessary characteristics of occupation exist, makes this reality, from a formal point of view, not occupation”.

Atty. Arnon continues and emphasizes the principle that this thing will not rise or fall based only on legality. There are another few important and influential parameters. “The legal angle is one angle but it is not the most significant one. If we assume that the State of Israel is occupying Judea and Samaria, a person could come and say that even if legally, Israel is an occupier, in his opinion, Israel need not withdraw from there because the place belongs to her from the point of view of history and religion, etc. Despite this, there could be a contrary reality in which it is said that even if Israel is not an occupier she may not be in this area. There are many times when we look at the actions not only according to the legal dimension but also according to the ethical and other dimensions”, he says and simplifies things with an analogy from everyday life: “Just as a person might go through a red light in order to bring a wounded person to the hospital. This is indeed against the law but from the ethical point of view it is justified”. 

Arnon says all of this as a sort of prolog to the legal opinion that there is nothing in international law that prohibits Israel from holding and controlling territories in Judea and Samaria. “When we investigate the question of Judea and Samaria we must remember that we are dealing only with the legal issue, an issue that is important but not the whole picture. In the legal prism, things are examined with legal tools and according to legal standards; and the conclusion is that Israel is not an occupier from this point of view. From this legal point of view the conclusion is correct in my opinion”.

“A person could come and tell me that even if Israel is not an occupier it must withdraw from there because it is similar to an occupier. This position is legitimate but is not correct legally”, states Arnon.

International law is not black or white. The Left chooses the legal stand that suits it

So what does international law say? Is it occupation or not? Is it permitted or prohibited? From Arnon’s words it is clear that nothing is as firm as the Left perhaps would like it to be. “In international law it is not black and white. Things are given to interpretation and subjectivity and since most of the world is against us politically it is no wonder that it also adopts a hostile legal position. Politics influences and permeates society. It is legitimate for my political position to also have an influence on my legal position. This is legitimate. What is not legitimate and not fair is to present their legal position as absolute truth and something that is not influenced by a political stance”.

And if it seems for a moment that the position that absolves Israel from the guilt of occupation comes from right wing jurists, then that is a mistake on our part. “The position that I present is acceptable to leading jurists in international law and even back in ’67 and the seventies, they determined that Israel’s position is just. Among the jurists is Prof. Eugene Rostow, dean of Yale University, Judge Stephen M. Schwebel – head of the International Court of Justice in the Hague, and others. There are a number of jurists who side with Israel’s position”.

Arnon takes pains not to dismiss the Left’s position but he also demands that the Left do the same for him and others who hold a position similar to his. “The other opinion is not unfounded but it is influenced by a political stance and I have the right not to adopt it but to adopt a legal position that supports my opinion”.

“Regarding occupied territory, there is no formal definition that defines what occupied territory is. There are attempts to investigate what the characteristics of occupied territory are and to come to a specific definition and as a result, there is a disagreement. The Israeli claim is very well based. There are other opinions but Israel need not accept them”. International law, which is anchored in covenants such as the Geneva Convention, in regulations, in books and scholarly articles, still has not really determined the definition of the term ‘occupied territory’. There are many commentators and each side chooses what is convenient for him.”

There is no precedence for Judea and Samaria in the world – territory that had no sovereign

And now we come to the core issue - is it occupation or not, from the legal standpoint. Arnon explains things and they sound totally simple. “In order for occupation to be occupation from a judicial point of view, a state must take territory from another state illegally. If, let’s assume, Mexico attacked the US and then the US conquered parts of Mexico, the fact that Mexico attacked illegally allows the US, according to some legal opinions, to hold this territory, since Mexico’s attack on the US was illegal”.

It seems that the legal status of Judea and Samaria is unique and unprecedented in legal history. It is easy for a person of faith to attribute this reality to the hand of Providence, which preserved this Land without a sovereign until its true sovereigns came. Arnon explains: “In Judea and Samaria, Israeli rule is in areas that belonged to no one and there is no disagreement about this. The Jordanians did not rule here, and certainly not the Palestinians. This means that from a legal point of view, this is not occupation. Another argument is that the Six Day War was a war of defense that was forced upon us. Meaning both that we entered Judea and Samaria legally and also that this is a territory that did not belong to any state. This is so unprecedented that jurists coined a Latin term (terra nulius) whose meaning is ‘territory with no sovereign’. There is no precedent for this in the world”. 
Regarding this precedence he mentions some instances from the past: “In ’48 when the British withdrew, they released the territory that was their mandate. We established a state on the Land that we held in ’48 and it was recognized by most of the world and Jordan entered Judea and Samaria without a claim. The significance is that Jordan undoubtedly occupied Judea and Samaria and when we entered there in ’67 we ousted the Jordanians who were there illegally and this is how we acquired the territory that was not under Jordanian, British or Turkish sovereignty.”

Arnon is asked whether especially Britain, who abandoned her mandate in the Land Israel, and recognized the Jordanian annexation, does not have any more weight compared to other states. It seems that Britain, in this regard, has an equal claim to that of any other state. “The borders of a state or annexation must be recognized by most of the world within a significant amount of time” Arnon says.

If so, we press him, then even if Israel decides to annex Judea and Samaria it will have to wait for the world’s recognition, which, apparently would not come. Atty. Arnon does not dismiss this but he also reminds us of another small detail. “The world also did not recognize the annexation of East and West Jerusalem. Jerusalem was supposed to be a demilitarized territory under international authority and Israel took control of this territory. This is the reason that most of the countries do not maintain embassies in Jerusalem. They do not recognize Israeli sovereignty even over West Jerusalem. This objection has eroded over the years and they are becoming used to this but the formal situation is that they do not recognize Jerusalem as Israeli. It is true that if we annex Judea and Samaria, the world will apparently not recognize this, but such a course is first of all correct and good for us regardless of international recognition, and moreover, perhaps in another hundred or hundred and fifty years the world will become used to the idea”.

Arnon finds the most significant advantage in application of sovereignty in a variety of matters that touch on daily life in the state that values life. He brings up a number of examples of the various sorts of matters: “Annexation will allow us to apply elementary laws like laws to protect the environment; it will enable us to give the Arabs equal rights and obligations and in this way we soften the sting of occupation. The claim of occupation will lose its power when the have such a package of rights”.

Shimon Cohen


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

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