How Israel’s Enemies Misrepresent the Geneva Convention

February 8, 2013 10:06 am 4 comments

The UN in Geneva. Photo: wiki commons.

Background

The language of Article 49 of the Geneva Convention was crafted in the wake of World War II and the Nazi occupation – an occupation that led to a war of aggression in which Nazi Germany attacked its neighbors with impunity, committing a host of atrocities against civilian populations, including deportation and displacement of local populations in occupied Europe. Millions were sent to forced labor camps and those of particular ethnic origin, most notably the Jews, were sent to their deaths in the gas chambers. The drafters of Article 49 were concerned with preventing future genocide against humanity.

Critics and enemies of Israel, including members of the UN and organs such as the International Court of Justice (ICJ) have come to use the Geneva Convention as a weapon against Israel, even when statements by authoritative analysts, scholars and drafters of the document contradict everything said by those who distort history for politically motivated reasons.

It is common knowledge that from its birth, Israel customarily follows international humanitarian law without being told or forced to do so by outside authorities.

“Occupied Territory”

The term “occupied territory,” which appears in the Fourth Geneva Convention, originated as a result of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.

Professor Julius Stone, a leading authority on the Law of Nations, categorically rejected the use of the term “occupied territory” to describe the territories controlled by Israel on the following counts:

(1) Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and does not belong to any other state.

(2)  The drafting history of Article 49 [Protection of Civilian Persons in Time of War] – that is, preventing “genocidal objectives” must be taken into account. Those conditions do not exist in Israel’s case.

(3)  Settlement of Jews in the West Bank is voluntary and does not displace local inhabitants. Moreover, Stone asserted: that “no serious dilution (much less extinction) of native populations” [exits]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred].”

Deportation and Forced Transfer
Arab opposition to Jewish settlements is based on the last paragraph of Article 49. The “Occupying Power” may not “Deport or transfer parts of its own civilian population into the territory it occupies.”

One can hardly believe this baseless ICJ assertion that Israel, the only free and democratic country in the Middle East used “deportation” and “forced transfer” of its own population into “occupied territories.”

Article 2 of the Fourth Geneva Convention

Article 2 of the Fourth Geneva Convention applies only to conflicts that “arise between two or more high Contracting Parties,” which is not the case at hand, as Israel is the only High Contracting Party (or state) in this conflict, and Jordan never was. Thus, the Fourth Geneva Convention is inapplicable!

Professor Julius Stone, one of the twentieth century leading authorities on the Law of Nations touches on the applicability of Article 49 of the Geneva Convention, writing on the subject in 1980:

“That because of the ex iniuria principle [unjust acts cannot create law], Jordan never had nor now has any legal title in the West Bank, nor does any other state even claim such title. Article 49 seems thus simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49 which is rather directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants, for other than security reasons.

Support to Stone’s assertion can be found in Sir Professor Elihu Lauterpacht’s writing in 1968:

“Thus Jordan’s occupation of the Old City-and indeed of the whole of the area west of the Jordan river-entirely lacked legal justification; and being defective in this way could not form any basis for Jordan validly to fill the sovereignty vacuum in the Old City [and whole of the area west of the Jordan River].”

Professor Eugene Rostow, past Dean of Yale Law School, U.S. under Secretary of State for Political Affairs, and a key draftee of UN Resolution 242, concluded that the Fourth Geneva Convention is not applicable to Israel’s legal position and notes:

“The opposition to Jewish settlements in the West Bank also relied on a legal argument – that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.” It seems that the International Court of Justice never explained it either.

Article 80 of the United Nations Charter

The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’ A trust does not end because the trustee dies [or] resigns.

UN Article 80 was specifically created in San Francisco on 26 June 1945 to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. Jews legal rights of settlements survived the British withdrawal in 1948.

The International Court of Justice [ICJ], Rome Statute of the International Criminal Court [ICC), and the Fourth Geneva Convention lack the authority to affect ownership of the Territories of Judea and Samaria known also as the West Bank.

4 Comments

  • This is total nonsense.

    I suggest you read the Advisory Opinion of the International Court of Justice which specifically, and unanimously says that the Conventions apply to the Occupied Palestinian Territory, and that Israel, the occupying Power, is violating those provisions.

    I must also add that the illegal transfer of population is also a WAR CRIME in accordance with the Rome Statute of the International Criminal Court.

    Say hello (soon) to an arrest warrant, Bibi!

  • What bull. The 1907 Hague Regulations are the ones that determine when is a territory considered under occupation, and they certainly do not state that sovereignty is a requisite. A territory is occupied when it is placed under the authority of the hostile army. That’s all it takes.

    On the other hand, article 49 of the 4th Geneva Convention does not say that the transfer has to be forceful to be forbidden. That is only in the case of civilians from the occupied territory. Civilians of the occupying power can’t be transferred to the occupied territory, neither forcefully or willingly. This is meant to prevent the occupier from altering the demographics of the occupied territory as a means to annex it.

    Try harder.

    • But you have omitted the title of Section III that says:

      SECTION III
      MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE

      What state was the territory you refer to?

      The Geneva Convention does not change this requirement.

      Thus, you have done just what the article suggested.

      Nor have you addressed Article 80.

    • Froy the only bull is you. So if I claim that you are taking my land and I don’t own it that is okay?

      Sovereignty is an absolute prerequisite – if it’s not yours you can’t claim period.

      What other ‘laws’ that state one action is illegal and another that is not mentioned is also illegal? If it isn’t in the law then that law does not make it illegal.

      Your ‘logic’ is on par with somebody in the third grade.

Leave a Reply

Please note: comments may be published in the Algemeiner print edition.


Current day month ye@r *

More...

  • Blogs Sports Gold on the Galilee: Israeli Kayaker Comes of Age, Eyes Olympics (VIDEO)

    Gold on the Galilee: Israeli Kayaker Comes of Age, Eyes Olympics (VIDEO)

    JNS.org – Three years ago, kayaking coach Roei Lev found aspiring Olympian Ilya Podpolnyy crying on the steps of the Jordan Valley Sprint Kayak Club overlooking the Kinneret (Sea of Galilee). Podpolnyy, then 17 years old, had just been disqualified from the Israeli kayaking championship. He couldn’t survive the heats. He didn’t make the start line. He was devastated—and he had no one with whom to share his hopes, his dreams, and his disappointment. His divorced parents still live in [...]

    Read more →
  • Arts and Culture US & Canada Lena Dunham Responds to Charges of Antisemitism: It was Just a Jew Joke

    Lena Dunham Responds to Charges of Antisemitism: It was Just a Jew Joke

    “Girls” creator Lena Dunham responded on Tuesday to charges of antisemitism over an article she had penned for the New Yorker, saying it was all in good humor. Speaking to Variety, Dunham reflected on her “tight-knit Jewish family, where Jew jokes were part of the essential fiber of our communication.” The article Dunham referred to was called “Dog or Jewish Boyfriend? A Quiz,” with options such as “He doesn’t Tip” and “He’s Crazy for Cream Cheese.” Among Dunham’s critics, Anti-Defamation [...]

    Read more →
  • Sports US & Canada Former NBA Star Tweets Article About Jewish Conspiracy to Control Global Media

    Former NBA Star Tweets Article About Jewish Conspiracy to Control Global Media

    Retired NBA player Keyon Dooling tweeted a link on Wednesday to a wildly antisemitic article that accuses Jews of seizing control of the world’s media and using it to promote their own interests. The article, published by an obscure blog in April 2013, highlights six companies it claims are owned by Jews — such as Time Warner, Inc. and the Walt Disney Company – that allegedly “control 96 percent of the world’s media.”  The post includes allegations of “Jewish control” and says [...]

    Read more →
  • Sports US & Canada Rosh Hashanah Won’t Keep the Giants’ Geoff Schwartz From Season Opener

    Rosh Hashanah Won’t Keep the Giants’ Geoff Schwartz From Season Opener

    New York Giants offensive guard Geoff Schwartz responded to an outcry from Jewish fans on Tuesday, saying he will go ahead and play in the season opener despite the fact that it falls on the first night of Rosh Hashanah. “Keep getting tweets about that being the first night of Rosh Hashanah… Don’t know what I’m supposed to tell you. It’s a tough break,” the Jewish athlete wrote, referring to the Giants’ on-the-road game against the Dallas Cowboys on Sunday, Sept. [...]

    Read more →
  • Jewish Identity Sports Jewish Coach David Blatt Has NBA’s Cavaliers Surging at Playoff Time

    Jewish Coach David Blatt Has NBA’s Cavaliers Surging at Playoff Time

    JNS.org – When David Blatt was hired as head coach of the National Basketball Association’s Cleveland Cavaliers last June, he was not often recognized when he walked the streets of downtown Cleveland. What a difference a year makes. Now, Blatt can go few places without being recognized. For good reason. The Jewish coach has the Cavaliers in the mix to win the city of Cleveland’s first championship in a major sport since the Browns won the National Football League title in [...]

    Read more →
  • Europe Sports Croatian Soccer Star’s Hebrew Tattoo Causes a Stir Online

    Croatian Soccer Star’s Hebrew Tattoo Causes a Stir Online

    A Hebrew tattoo sported by Croatian soccer star Mario Mandzukic became an internet sensation in Israel after it was exposed on Tuesday during a Champions League match between Ateltico Madrid and Real Madrid A first glance, the tattoo, on the athlete’s back, might leave one with the impression that it was an unfortunate artistic mistake, since the Hebrew letters do not make sense as they are written. However, a closer look at the tattoo shows that it was actually written [...]

    Read more →
  • Blogs Theater Why an Algemeiner Editor Wrote a Play About a Mass Shooter

    Why an Algemeiner Editor Wrote a Play About a Mass Shooter

    For the past two years, I have served as Opinion Editor at The Algemeiner. I’m perhaps most proud of the paper’s commitment to publishing diverse and opposing viewpoints on the controversial issues of the day. We pride ourselves on voicing different opinions because we know that most issues are not black and white, and because our community is better served by a public debate. In my life outside of the paper, I am a professional actor and playwright. And similarly, [...]

    Read more →
  • Book Reviews Commentary In ‘America in Retreat,’ a Real-Life Risk Board

    In ‘America in Retreat,’ a Real-Life Risk Board

    JNS.org – “Risk: The Game of Strategic Conquest,” the classic Parker Brothers board game, requires imperial ambitions. Players imagine empires and are pitted against each other, vying for world domination. Amid this fictional world war, beginners learn fast that no matter the superiority of their army, every advance is a gamble determined by a roll of the dice. After a defeat, a player must retreat. Weighted reinforcement cards provide the only opportunity to reverse a player’s fortunes and resume the [...]

    Read more →



Sign up now to receive our regular news briefs.