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It was reported in the press (22.3.05) that the Israeli state has rejected settlers' appeal against the uprooting because the state argues that the areas of Judea, Samaria and Gaza (Yesha) have been held by Israel since the Six Day War and until today in "belligerent occupation". The argument is that since belligerent occupation is by definition temporary, the settlers could have anticipated that one day they could be uprooted.
This is manifestly incorrect. After 1967, Israel had to decide how to proceed with specific and practical questions on the ground. Even though Israel had the right according to international law to annex and declare sovereignty on any part of Western Palestine, it delayed its annexation. To deal with concrete practical problems, it voluntarily decided to apply a complex mix of the rules of belligerent occupation and municipal law. Indeed as long as the territory is not annexed and sovereignty declared, there are no other legal frameworks available.
The de facto usage that Israel made of aspects of Belligerent Occupation Law is akin to the Americans voluntarily using aspects of the Human Rights law involved in the Geneva Convention for prisoners of war for her prisoners in the Guantanamo Bay but they are not considered to be prisoners of war. After all they had to find some rules with which to treat these prisoners. Similarly, the de facto adoption of some rules of belligerent occupation to solve local problems by Israel does not imply that the settlers' rights are governed by the law of belligerent occupation.
All along Israel, its Ministry of Foreign Affairs (MFA), the justices of Israel's own Supreme Court, and all experts of international laws, were stressing again and again that Jewish National Rights in Western Palestine, in particular the right for urgent encouragement and facilitation of dense Jewish settlement in Western Palestine, are based on OTHER principles of international law and not on belligerent occupation which is simply not relevant for the rights of Jewish settlers.
It is precisely to clarify this situation that Professor Julius Stone devotes his Discourse 1 in his book: "Israel and Palestine," (The Johns Hopkins University Press, 1981). He exemplifies the principles involved with petitions to Israel's Supreme Court concerning the requisitioning of the petitioners' private property. The Supreme Court court allowed requisition only in case of strict security requirement - such as against terrorism. But even if part of the purpose of the requisition was political and part served a military purpose, the court did not allow the requisition. The involvement of "belligerent occupation" in the context of the ruling of the Supreme Court in such specific problems does not imply that Jewish rights to settle in Palestine are or should be based on "belligerent occupation"
Stone states that these cases in no way bear on
"Israel's territorial rights, or the rights of Jews to settle in Judea and Samaria (the West Bank) and Gaza. The determination of such rights involves the application of other rules of international law than those concerning belligerent occupation."
He points out that for specific problems such as requisition of land, Israel volitionally acted "AS IF" the requisitions depend on the customary law of belligerent occupation. But he keeps repeating that the right for dense Jewish settlement in Western Palestine is not dependent on the law of belligerent occupation but on other "formidable bases of title", i.e., other principles of international law to which the justices of the supreme court did not have to refer to when ruling on requisitions. And these justices indeed carefully reserved their ruling so as not to imply that these other bases do not exist. He enumerates these "formidable bases of title" (pp 168-169):
"The other bases of Israel's territorial entitlement, and the principles of international law involved, were examined in Chapter 7. They include: (1) The rule that would attribute sovereign title in Judea and Samaria (the West Bank) and Gaza to Israel, by virtue of the fact that Israel is the state in lawful possession of territory affected by a "sovereignty vacuum" (view of E. Lauterpacht); (2) The rule that in a situation of disputed sovereignty that state is entitled that can establish the best title thereto, a rule well recognized by the International Court of Justice; (3) The rule that a state in lawful possession of territory to which no other sovereign has supportable claim of sovereignty is entitled to take the step of formal annexation; (4) The rule laid down by the International Court of Justice, that territories subject to a League of Nations mandate whose disposition has not been otherwise determined remain subject to the obligations of the mandate, here the mandate for Palestine of which the primary obligation was the establishment of a Jewish national home. Far from dismissing such formidable bases of title, this analysis will show that the judgements of the Supreme Court of Israel carefully reserved the effects of such other rules, the court regarding itself as debarred from addressing them by the manner in which the case was presented."
In addition it is worth noting that there is the legal rule that an aggressor (such as Jordan, Syria and Egypt in 1948, 1967, 1973) shall not benefit from the fruits of his aggression and that is why it is lawful and customary that territory gained in self-defence is not returned. There are many examples realizing this rule such as the many countries that incorporated German territory into their national territories, Belgium even from the First World War, or the Japanese islands in Russian possession.
In view of the above a legal basing of the proposed uprooting on belligerent occupation is unlawful. It does provides a false legal base for the uprooting. But the settlers have the right to expect their rights shall be based on these "formidable bases of title" and in addition on basic human rights and certainly Jews should not be singled out since this is racist and anti-Semitic.
The ministry of justice now tells the settlers that they could have anticipated that their settlement in Yesha would be only TEMPORARY, because the status of the "territories" is of 'belligerent occupation'. This is disingenuous since it ignores the other bases of law and the fact that "belligerent occupation" was volitionally invoked by the Israeli authorities in order solve current problems of non-Jewish inhabitants of the territories. It is also a fact that still into the eighties the documents issued by Israel Ministry of Foreign Affairs (MFA) pointed out that "Jordan is Palestine". If Israel's MFA was emphasizing that there is already an Arab Palestinian state on four fifths of Palestine (whereas the totality of Palestine was dedicated by the League of Nations as the Jewish National Home), how could the settlers conceive (when they decided to settle in Yesha) that one day in the future they will be uprooted in order to make place for yet another Palestinian Arab state in Palestine, as called for in the Bush Road Map?
It is worthwhile to note that the idea to invoke 'belligerent occupation' in order to provide a legal base for the racist uprooting of Jewish settlement in Palestine stems from the same frame of mind and the same legal quarters that conceived the idea that Israel should adopt de jure the Fourth Geneva Convention, Article 49(6), that reads as follows: "The occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." This position about Article 49(6) was traditionally adopted by bodies hostile to Israel, like Amnesty International and Her Majesty Government, but was rejected by all previous Israeli legal systems, MFAs and governments. Indeed, this part of the 4th Geneva Convention is multiply irrelevant to Jewish settlement in Yesha as explained in "Discourse 2" in Julius Stone's book mentioned above.
"Belligerent Occupation" (with which Stone deals in Discourse 1 of his book) and Article 49(6) of the 4 Geneva Convention (with which Stone deals in Discourse 2 of his book), have been, and are still, the two major "code slogans" invoked in order to claim that Jewish settlement in Yesha is illegal in international law. It is therefore worthwhile to quote parts of Discourse 2.
"Perhaps the central current criticism against the government of Israel in relation to its administration of the territories occupied after the 1967 War concerns its alleged infractions of the final paragraph (6) of Article 49, of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949. The preceding paragraphs deal with deportation or transfer of a population out of the occupied territory. The final paragraph (6) reads as follows. 'The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies.'"
"It has been shown in Chapters 3 and 7 that there are solid grounds in international law for denying any sovereign title to Jordan in the West Bank, and therefore any rights as reversioner state under the law of belligerent occupation."
"Not only does Jordan lack any legal title to the territories concerned, but the Convention itself does not by its terms apply to these territories. For, under Article 2, the Convention applies 'to cases of ... occupation of the territory of a High Contracting Party, by another such Party'. Insofar as the West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all. This is a technical, though rather decisive, legal point."
"It is also important to observe, however, that even if that point is set aside, the claim that Article 49 of the convention forbids the settlement of Jews in the West Bank is difficult to sustain."
"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. The genocidal objectives, of which Article 49 was concerned to prevent future repetitions against other peoples, were in part conceived by the Nazi authorities as a means of ridding their Nazi occupant's metropolitan territory of Jews - of making it, in Nazi terms, judenrein. Such practices were, of course, prominent among the offences tried by war crimes tribunals after World War II."
Stone explains that it is an absurd to enlist the concern of Article 49 to prevent an occupier from inflicting inhuman treatment on its own metropolitan population in order to require the Israeli governement to prevent its citizens from settling in Judea, Samaria and Gaza. In a paragraph that demolishes the applicability of Article 49 to Jewish settlement in Yesha, he says:
"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."
Stone continues to elaborate the subject in his Discourse 2 and his conclusion is that "a demand that this territory [Yesha] be kept judenrein would be a gross travesty of this legal position, turning international law on its head." Yet this legal travesty too was suggested by the current attorney general and his team. Israel's current Supreme Court also incorrectly invoked the Fourth Geneva convention in relation to the fence. For a discussion see "Is Israel's Legal System Acting Illegally," http://www.think-israel.org/shifftan.legalsystem.html.
What is the source of such an accumulation of anti-Jewish and objectively illegal positions of the present Israeli legal system, in clear opposition to earlier Israeli legal systems and to the positions of the greatest experts of international law? Is it due to pure ignorance or to something else? For whatever reason, such an accumulation of incorrect applications of international law discredits the Israeli legal system and diminishes its authority.
It is very worrying that the current Israeli legal system and government ignores fundamental historical-legal facts:
In any case one should note that all U.N. resolutions with respect to the Israel-Arab conflict (including resolutions 181, 242, 338) are based on chapter 6 of the Charter of the United Nations which are only recommendations, unlike decisions based on chapter 7, which allow the security council to operate force in order to carry out the resolution (like the decision that obliged Iraq to get out of Kuwait).
I would, however, like to stress here the violation of the law of trusts according to which the complete set of beneficiaries must benefit from any given trust. Because it is the "Jewish People" that is the beneficiary of the "Sacred Trust of Civilisation" enacted in perpetuity by the League of Nations, the beneficiaries of this particular trust include Jews everywhere and all Future Generations Of Jews. The contemplated uprooting will deprive other beneficiaries of the Palestine trust, such as future Jewish generations, of their rights as beneficiaries. And this is the most fundamental violation of the law of trusts. Thus the proposed uprooting involves one beneficiary depriving other beneficiaries of their rights. According to this particular "sacred trust" all present-day and future Jews have the right to be urgently encouraged and facilitated in their dense settlement of the land Palestine and the right not to transfer the land out of Jewish control, as well as the right to assert their Jewish political and national status in at least Western Palestine, the fifth that remained of the Jewish National Home according to the "sacred trust". This violation of the law of trusts is elaborated in http://www.think-israel.org/shifftan.uprooting.html
In summary, belligerent occupation is indeed temporary. That doesn't mean Jews can live in Gaza only short term. It does mean that a temporary condition is in contrast to and is trumped by the terms of the Palestine Mandate, which solemnly states that Israel owns western Palestine in perpetuity and this is irrevocable.
The army, the police and all those that are called to carry out the uprooting should know that they are called to carry out an activity that is illegal in multiple ways. They should draw their own conclusions whether to obey such orders. Moreover, the more Israeli judges are made aware that the public is aware of their rights in western Palestine, the better is the chance that they will not be opportunistic. They might even act in accordance with international law and to Israel's benefit.
1. See for example "State: Pullout doesn't violate rights," by Dan Izenberg, Jerusalem Post, March 22, 2005.
2. This Synopsis is from www.lawofwar.org/Occupation.htm, which used as sources: Stone, Oppenheim, FM 27-10, British Manual Part III, Hague Convention IV, 1907, Articles 46-56, Geneva Civilians Convention, 1949, Protocol I to Geneva Conventions.
Synopsis Of Law Governing Belligerent Occupation:
3. The Balfour Declaration and the British Mandate: The Balfour is a declaration of intent, a "declaration of sympathy" in the words of the document itself, with no legal binding power in international law. By contrast, the League of Nations' Mandate is a mandatory, legally-binding document in international law, in perpetuity, confirmed by the 52 nations of the League of Nations. Therefore the statements of the Attorney General's office are not right or wrong but are simply meaningless and irrelevant. There seems to be an intentional glaring omission of the mandate itself in order to mislead; or is the Attorney General that ignorant? The attorney general's office camouflages the main issue in not focusing on the League's Mandate itself and by ignoring the on-going validity of the Mandate, as for example expressed in the title of the chapter in the book of Julius Stone ("Israel and Palestine," The Johns Hopkins University Press, 1981): "Continuing Obligations Of The Mandate". Nothing that Israel's legal system says cannot change the facts that: a) the legal binding document is the mandate of the League of Nations and b) that the obligations of the Mandate are valid in perpetuity. For more details see http://www.think-israel.org/shifftan.uprooting.html.
It is also the case that the mandate is much stronger in recognizing Jewish national rights. For example, in the Balfour declaration we read: "His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people". In the mandate a recognition is given that there has already been a Jewish national home in Palestine and it is a mere re-establishment: "Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country".
The mandate is also stronger in that it specifies details about Jewish National Rights. For example, Article 5 states: The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power". And in all textbooks about international law one can find that the purpose of that was to keep the land until the beneficiary nation concerned is ready for independence. For example in the book of D.J. Harris of 2004 entitled International Law, it is written that the role of a Mandatory of the League of Nations was "to promote development towards independence. In no case was sovereignty transfered to the Mandatory".
Article 6 also specifies that the Administration of Palestine "shall facilitate Jewish immigration... and shall encourage, in cooperation with the Jewish agency...close settlement by Jews on the lands, including State lands and waste lands not required for public purposes". The document also injects a sense of urgency and requires (Article 24) that "the mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council as to the measures taken during the year to carry out the provisions of the mandate". The associated Feisal-Weizmann 1919 Agreement, which is also legally binding, is also strong on the recognition of Jewish National Rights. For example it says: "All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil."
In the rejected appeal of the Jews of Gaza, the praklitut (from the
State Prosecutor's Office) did not say one word about the Balfour
declaration; she just mentioned the fact that the mandate was over in
1948. But the English version of Arutz-Sheva focussed on the Balfour
declaration, and it is also involved in the Hebrew version. This is
from the English version of of an article entitled "Top Gov't Lawyers:
Balfour Declaration is No Longer Relevant," Arutz-Shevah, May 2, 2005,
(IsraelNN.com) Israel's top government lawyers, representing the Attorney General, have asserted that Jews have no legal right to settle in Judea, Samaria, and Gaza, at least according to the Balfour Declaration.
The lawyers made their controversial legal point in a brief submitted to the High Court of Justice in defense of the government's Expulsion and Compensation Law. The Balfour Declaration, issued by the British government in 1917 after conquering the land of Israel from the Turkish Empire in World War I, provided for the establishment of a Jewish national home "in Palestine."
At that time the area of Palestine included the present boundaries of the State of Israel, including the territories of Judea, Samaria, and Gaza, as well as the area on the east bank of the Jordan River, occupied today by the Kingdom of Jordan.
Most legal scholars agree that the Balfour Declaration serves as the legal basis for fighting Israel's War of Independence, as well as for the immigration and settlement of Jews in Israel prior to the establishment of the State in 1948. The 1947 UN resolution favoring the establishment a Jewish State in Palestine was also based on the Balfour Declaration. The government attorneys say the declaration became irrelevant at the end of the Mandatory Period in 1948, when modern Israel became an independent state.
The focus of the praklitut should have been on the League of Nations' trust (Neemanut), issued by the 52 states of the League of Nations. The Balfour declaration may have become irrelevant in 1948 but the obligations (Jewish national rights) of the Mandate continue. The Balfour Declaration was codified in the Mandate and the League's trust and obligations continue to be mandatory for its successor, the United Nations.
If one argues that the perpetual right of Israel to all of Palestine has been abrogated, then one also brings into question the status of the Arab states that were created by England in the aftermath of World War 2. The legality of these Arab states that were carved out of the defunct Ottoman Empire also rests on the same "trusteeship system" installed after the first world war by the community of nations. In fact, the Weizmann-Feissal agreement of the 1919 peace conference talked of one Jewish state (all of Palestine) and only one Arab state (the other 99.9% of the Middle East).
4. Eugene Rostow was Under Secretary at the State Department and Dean of the Yale Law School. At the State Department, he played a leading role in producing UN Security Council Resolution #242. He wrote two articles on the resolution in the New Republic. These can be read in Think-Israel in an article entitled "Are the Settlements Legal?" (http://www.think-israel.org/rostowNR.html).
5. Dore Gold was recently an advisor to Sharon and had to adapt - it was diplomatic of him to describe Yesha as "disputed land." I think that we should refrain from using the term "disputed land" or "unapportioned land" or "residual areas" and only point out that all of Palestine is Jewish by virtue of Mandate, and Western Palestine even more so, since "the consent of the Council of the League of Nations, to postpone or withold application of such provisions of this Mandate... [from the later addition to the Mandate in sept 1922]" were not applied to Western Palestine. The use of the words 'postpone' and 'withold' can be invoked to claim that Jewish right to Eastern Palestine - now the Hashemite Kingdom of Jordan - was not cancelled by the League but only postponed (they did have some sense of shame at this period).
6. If these resolutions were binding, than the absurd situation would be created that a body such as the U.N. could issue binding decisions contradicting its - almost by definition - more fundamental charter. It is the same logic that Julius Stone points out, that even if the suddenly-discovered nationality by the Palestinian were true, it is a fundamental of law that applying the "self-determination" principle to a new group at the expense of a group with respect to which this principle was applied in the past would cause a total mayhem and a breakdown of international law.
7. Whenever 242 is mentioned, someone echoes the very common Arab lie that the resolution calls for the retreat from ALL the territories. This is untrue; the resolution calls for (i.e., recommends) retreat only in a context of total peace, to a "secure and recognized borders." This means retaining all of Yesha and the Golan, even according to the report of the Commander of the American Army in 1968 to President Johnson (http://www.acpr.org.il/hatikvah/05-English-Ad.htm).
Dr. Yoram Shifftan has published many articles on Israeli hasbara
in publications such as Ha'aretz, Ma'ariv, Hatzofeh, Hamodia and
Ha'Uma. He has also presented a special series about hasbara on
Arutz-7 radio. His articles in Think-Israel have been on
hasbara and the legal basis of Israel's ownership of Biblical Israel.
Dr. Yoram Shifftan has published many articles on Israeli hasbara in publications such as Ha'aretz, Ma'ariv, Hatzofeh, Hamodia and Ha'Uma. He has also presented a special series about hasbara on Arutz-7 radio. His articles in Think-Israel have been on hasbara and the legal basis of Israel's ownership of Biblical Israel.
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