Countering Bias and Misinformation mainly about the Arab-Israel conflict

INTERNATIONAL LAW AND THE SETTLEMENTS

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About Maurice Ostroff
By Maurice Ostroff                                         September 2011
 
 
 
This article is intended neither as an argument for, nor against, Israel retaining some or all of the West bank settlements . Rather it urges that any discussion of the subject be based on the facts. Though some authorities maintain that its presence on the West Bank is legal, Israel may nevertheless decide  to relinquish legal claims in an agreed territorial compromise in the interests of peace.

Proponents of sanctions against Israel refer repeatedly to Israeli violations of international law as if the alleged illegality is axiomatic. However if we look only at facts without being diverted by preconceived, unsubstantiated opinions there is a strong likelihood that we might revise our conclusions.

 

Contrary to the intellectually honest approach of seeking credible information from a wide variety of sources and following the facts wherever they may lead, Israel's attackers regularly quote only sources that support their belief that Israel is an illegal occupier, and exclude others of equal or possibly better authority that conflict with what they wish to believe.

 

Authoritative experts who have declared Israel’s presence in the West Bank, East Jerusalem and the Golan to be legal, include inter alia

 

  • Judge Schwebel, a former President of the ICJ, who pronounced “As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem.” (See Appendix A and http://www.2nd-thoughts.org/id248.html )

 

 

  • Eugene W. Rostow, US Undersecretary of State for Political Affairs between 1966 and 1969 who played a leading role in producing the famous Resolution 242.
    See
    http://www.2nd-thoughts.org/id45.html

 

 

  • William M. Brinton, who appealed against a US district court's withholding of State Department documents concerning US policy on issues involving Israel and the West Bank, the Golan Heights, and the Gaza Strip. He showed that none of these areas fall within the definition of "occupied territories” and that any claim that the West Bank, the Gaza Strip, or both, is a Palestinian homeland to which the Palestinians have a 'legitimate right' lacks substance and does not survive legal analysis. According to Mr. Brinton no state, other than Israel, can show a better title to the West Bank.

 

 

  • Sir Elihu Lauterpacht CBE QC., the British specialist in international law, who concludes inter alia that sovereignty over Jerusalem already vested in Israel when the 1947 partition proposals were rejected and aborted by Arab armed aggression.

 

         Simon H. Rifkind,  Judge of the United States District Court, New York who wrote an in depth analysis “The basic equities of the Palestine problem” (Ayer Publishing, 1977) that was signed by Jerome N. Frank, Judge of the United States Circuit Court of Appeals Second Circuit; Stanley H. Fuld, Judge of the Court of Appeals of the State of New York; Abrahan  Tulin, member of the New York Bar; Milton Handler, Professor of law, Columbia University; Murray L. Gurfein, member of the New York Bar; Abe Fortas, former Undersecretary of Interior of the United States and Lawrence R. Eno, member of the New York Bar. They jointly stated that justice and equity are on the side of the Jews in this document that they described as set out in the form of a lawyer’s brief.

 

 THE PILLARS ON WHICH THE ACCUSATIONS OF ILLEGALITY ARE BASED

 

In the present highly charged political atmosphere prevailing about the Israel Arab conflict and the widely acknowledged prejudiced voting pattern in the UN, it is obvious that interpretation of some international laws are influenced more by political, rather than purely legal considerations

 

Ms Hanan Ashrawi, the eloquent member of both the Palestine Liberation Organization’s executive committee and the Palestinian Legislative Council, in a January 20 oped in the NY Times summed up the prevailing arguments for declaring Israel to be in violation of International law. She claims that settlements are

a) a violation of the Fourth Geneva Convention and

b) a war crime under the Rome Statute.

 http://www.nytimes.com/2011/01/21/opinion/21iht-edashrawi21.html?_r=2

 

Both claims deserve serious discussion as follows.

             

a) The Fourth Geneva Convention (GCIV)  (See http://www.2nd-thoughts.org/id347.html )

 

Protected Persons. The full title “Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 should be read in relation to article 4, which defines persons protected by the Convention as those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals with the provision that nationals of a State which is not bound by the Convention are not protected by it.

Since the Arab residents of the West bank are not residents of a state that is bound by the Convention, the question arises as to whether they are “Protected persons” as defined above and whether the GCIV applies to them at all.

 

 

Parties to the agreement. Article 1 states, “the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. Since neither the PA nor the PLO is a High Contracting Party, it is problematic as to whether the Convention is applicable to them.

 

Article 49. Almost all who claim that Israel is in violation of the fourth Geneva Convention, including the International court of Justice refer to article 49 which states inter alia that


i) Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive and

 

ii) the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

 

As there certainly is no suggestion that Israel is engaged in transfers of any persons, whether protected or not, from occupied territory to Israel, item (i) above does not apply.

 

The remaining point is whether Israel is “deporting or transferring” parts of its own civilian population to the territory it occupies.   The questions then arise as to whether the West Bank is in fact occupied territory and if so, whether the people in the settlements, who go there of their own free will, can be regarded as being deported or transferred there by the government of Israel. It requires a stretch of semantic acrobatics to describe the voluntary migration of persons to settlements in the West Bank as being deported or transferred by the government.

 

Occupied or disputed.  As more fully dealt with in the paper on SAN REMO,

(www.2nd-thoughts.org/xxxx )  the land on both sides of the Jordan, were part of the Jewish National Home created by the 1920 San Remo Conference, mandated to Britain, endorsed by the League of Nations in 1922, affirmed in the Anglo-American Convention on Palestine in 1925 and confirmed in 1945 by article 80 of the UN.

 

Although Jerusalem and the West Bank, (Judea and Samaria), were illegally occupied by Jordan in 1948 they remained in effect part of the Jewish National Home that had been created at San Remo. In the 1967 6-Day War Israel, in effect, recovered territory that legally belonged to it.

 

The late Prof. Julius Stone reinforces the claim that the areas are not occupied: He wrote, “ Israel‘s presence in all these areas pending negotiation of new borders is entirely lawful, since Israel entered them lawfully in self-defence.  International law forbids acquisition by unlawful force, but not where, as in the case of Israel’s self-defence in 1967, the entry on the territory was lawful. It does  not so forbid it, in particular, when the force is used to stop an aggressor, for the effect of such prohibition would be to guarantee to all potential aggressors that,  even if their aggression failed, all territory lost in the attempt would be  automatically returned to them. Such a rule would be absurd to the point of lunacy. There is no such rule"….  See http://www.2nd-thoughts.org/id160.html

 

Additional authoritative legal arguments about the legality of settlements may be found at  http://theisraelisettlements.blogspot.com/p/settlements-legal-issues.html

 

Resolution 242 (http://www.2nd-thoughts.org/id127.html ). Since 242 is a security council decision it is legally binding unlike resolutions of the GA that are mere recommendations. Obviously the most reliable sources from whom to seek clarification are the persons who played key roles in drafting the resolution, including Undersecretary of State for Political Affairs, Eugene Rostow. In an article in The New Republic, "Resolved: are the settlements legal? Israeli West Bank policies," (Oct. 21, 1991) Rostow wrote that it was explicitly agreed that Israel was not to be forced back to the 'fragile and vulnerable' Armistice Demarcation Lines, but to secure and recognized boundaries.  For this reason, the word “the” was deliberately omitted in the call for “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” not from all the territories.

   

It is important to realize that Israel has already complied with this provision in a major way having withdrawn from about 90% of territories occupied in 1967 comprising all of Sinai and Gaza. 

 

 

b) The Rome Statute http://www.2nd-thoughts.org/id346.html

Admissibility. The Rome Statute that established the International Criminal Court (ICC) was adopted in Rome on 17 July 1998. It defines the court's functions and  jurisdiction and according to article 17, the ICC can only investigate and prosecute in situations where states are unable or unwilling to do so themselves. As Israel’s High court  has investigated and continues to investigate the defensive WALL that has been the subject of an advisory by the ICC as well as claims of illegality of settlements, it appears that the Rome Statute does not apply to Israel and that the ICC’s decision to investigate the Wall was a political, not a juridical decision.

Similarly, according to Article 11 of the Rome Statute the Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.  As Entry into force of the treaty in accordance with article 126, did not occur until July 1, 2002, the treaty is not applicable to settlements built prior to that date and possibly any natural growth of those settlements since then. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en

With regard to article 8(2)(b)(viii) prohibits the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, this subject has been dealt with under the heading Geneva Convention  article 49 above.

 

War crimes. Ironically, Ms. Ashrawi’s reference to war crimes under the Rome Statute is particularly appropriate not to Israel, but to Hamas who are guilty of the following war crimes as defined by Article 8 of the statute

  • Wilful killing;
  • Torture or inhuman treatment and willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial as in the deprivation of POW rights to Gilad Shalit
  • Taking of hostages.
  • Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
  • Intentionally directing attacks against civilian objects, that is, objects which are not military objectives
  • Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated
  • Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives or persons
  • Declaring that no quarter will be given
  • Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations
  • Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities
  • The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

___________________________________________________________

 

Appendix A  (back to the text)

APPENDIX A

Judge Schwebel  (See also http://www.2nd-thoughts.org/id248.html )

 

In “What Weight to Conquest? Aggression, Compliance, and Development”  Pages 521-526 Judge Schweibel wrote

 

The facts of the June 1967 "Six Day War" demonstrate that Israel reacted defensively against the threat and use of force against her by her Arab neighbors. This is indicated by the fact that Israel responded to Egypt's prior closure of the Straits of Tiran, its proclamation of a blockade of the Israeli port of Eilat, and the manifest threat of the UAR's use of force inherent in its massing of troops in Sinai, coupled with its ejection of UNEF. It is indicated by the fact that, upon Israeli responsive action against the UAR, Jordan initiated hostilities against Israel. It is suggested as well by the fact that, despite the most intense efforts by the Arab States and their supporters, led by the Premier of the Soviet Union, to gain condemnation of Israel as an aggressor by the hospitable organs of the United Nations, those efforts were decisively defeated. The conclusion to which these facts lead is that the Israeli conquest of Arab and Arab-held territory was defensive rather than aggressive conquest.  [ Author’s note - See Appendix B] 

 

The facts of the 1948 hostilities between the Arab invaders of Palestine and the nascent State of Israel further demonstrate that Egypt's seizure of the Gaza Strip, and Jordan's seizure and subsequent annexation of the West Bank and the old city of Jerusalem, were unlawful. Israel was proclaimed to be an independent State within the boundaries allotted to her by the General Assembly's partition resolution. The Arabs of Palestine and of neighboring Arab States rejected that resolution. But that rejection was no warrant for the invasion by those Arab States of Palestine, whether of territory allotted to Israel, to the projected, stillborn Arab State or to the projected, international­ized city of Jerusalem. It was no warrant for attack by the armed forces of neighboring Arab States upon the Jews of Palestine, whether they resided within or without Israel. But that attack did justify Israeli defensive measures, both within and, as necessary, without the boundaries allotted her by the partition plan (as in the new city of Jerusalem). It follows that the Egyptian occupation of Gaza, and the Jordanian annexation of the West Bank and Jerusalem, could not vest in Egypt and Jordan lawful, indefinite control, whether as occupying Power or sovereign: ex injuria jus non oritur.

 

 If the foregoing conclusions that

(a) Israeli action in 1967 was defensive and

(b) Arab action in 1948, being aggressive, was inadequate to legalize Egyptian and Jordanian taking of Palestinian territory, are correct, what follows?

 

It follows that the application of the doctrine of according no weight to conquest requires modification in double measure. In the first place, having regard to the consideration that, as between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt (the UAR indeed has, unlike Jordan, not asserted sovereign title), it follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable), whether those modifications are, in Secretary Rogers's words, "insubstantial alterations required for mutual security" or more substantial alterations - such as recognition of Israeli sovereignty over the whole of Jerusalem. (8) In the second place, as regards territory bordering Palestine, and under unquestioned Arab sovereignty in 1949 and thereafter, such as Sinai and the Golan Heights, it follows not that no weight shall be given to conquest, but that such weight shall be given to defensive action as is reasonably required to ensure that such Arab territory will not again be used for aggressive purposes against Israel. For example - and this appears to be envisaged both by the Secretary of State's address and the resolution of the Security Council - free navigation through the Straits of Tiran shall be effectively guaranteed and demilitarized zones shall be established.

 

The foregoing analysis accords not only with the terms of the United Nations Charter, notably Article 2, paragraph 4, and Article 51, but law and practice as they have developed since the Charter's conclusion. In point of practice, it is instructive to recall that the Republic of Korea and indeed the United Nations itself have given considerable weight to conquest in Korea, to the extent of that substantial territory north of the 38th parallel from which the aggressor was driven and remains excluded - a territory which, if the full will of the United Nations had prevailed, would have been much larger (indeed, perhaps the whole of North Korea). In point of law, pro­visions of the Vienna Convention on the Law of Treaties are pertinent. Article 52 provides that: "A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations" - a provision which clearly does not debar conclusion of a treaty where force has been applied, as in self-defense, in accordance with the Charter. And Article 75 provides that: "The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression."

 

The state of the law has been correctly summarized by Elihu Lauterpacht, who points out that territorial change cannot properly take place as a result of the unlawful use of force. But to omit the word "unlawful" is to change the substantive content of the rule and to turn an important safeguard of legal principle into an aggressor's charter. For if force can never be used to effect lawful territory change, then, if territory has once changed hands as a result of the unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. This cannot be regarded as reasonable or correct. (back to the text) 

 

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