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...

  • Arts and Culture US & Canada ‘Death of Klinghoffer’ Actress Compares Met Opera to ‘Schindler’s List’

    ‘Death of Klinghoffer’ Actress Compares Met Opera to ‘Schindler’s List’

    An actress starring in the controversial Met Opera The Death of Klinghoffer defended the show on Tuesday by comparing it to the 1993 Holocaust film Schindler’s List, New York Post reported. “To me, this was like [the movie] Schindler’s List. We make art so people won’t forget,’’ said the actress, who plays a captured passenger in the show and asked not to be identified. The Met Opera focuses on the infamous murder of Lower East Side Jewish resident Leon Klinghoffer, 69. The wheelchair-bound father of [...]

    Read more →
  • Analysis Arts and Culture Beyond ‘Klinghoffer’: Opera’s Composer, Librettist Have Broader Jewish Problem

    Beyond ‘Klinghoffer’: Opera’s Composer, Librettist Have Broader Jewish Problem

    JNS.org – One of the most controversial operas in recent memory, “The Death of Klinghoffer,” debuted Oct. 20 at New York’s Metropolitan Opera. The Met has scheduled seven more performances through November. The first staging did not occur without protest, as about 400 demonstrators—including Jewish communal and nationally recognized leaders—came to Lincoln Center to denounce the anti-Jewish and anti-Israel opera. “Klinghoffer,” the creation of composer John Adams and librettist Alice Goodman, premiered in 1991—with few additional stagings. The opera is based [...]

    Read more →
  • Arts and Culture US & Canada Israeli Actress Gal Gadot in Talks to Star in Ben-Hur Remake

    Israeli Actress Gal Gadot in Talks to Star in Ben-Hur Remake

    Israeli actress Gal Gadot is in negotiations to take on the female lead role in the remake of the 1959 classic Ben-Hur, according to The Hollywood Reporter. If the deal is finalized Gadot will play Esther, a slave and Ben-Hur’s love interest. Actor Jack Huston will star as the Jewish prince who is betrayed into slavery by his childhood friend Messala, played by Toby Kebbell. Ben-Hur fights for his freedom and vengeance with the help of Morgan Freeman’s character, who trains Ben-Hur how to win at chariot-racing. [...]

    Read more →
  • Jewish Identity Sports Young Israelis Try to Crowd-Fund Their Way to Major League Baseball Playoffs

    Young Israelis Try to Crowd-Fund Their Way to Major League Baseball Playoffs

    JNS.org – Baseball, hot dogs, and apple pie are the American dream. So why do two young men who have built their lives in Israel have a GoFundMe crowd-funding webpage with the urgent message that they need $3,000 to travel to the U.S. to watch the Kansas City Royals and Baltimore Orioles square off for Major League Baseball’s (MLB) American League championship? Brothers Naftali and Yoni Schwartz, 27 and 25, respectively, are Kansas City natives. Even though they made aliyah with their [...]

    Read more →
  • Blogs Sports Race Cars Speed Through Jerusalem in Amazing Exhibition

    Race Cars Speed Through Jerusalem in Amazing Exhibition

    Some 3,000 years ago, King David probably never imagined cars racing at 240 kilometers per hour (150 miles per hour) through the ancient capital of the Jewish people. But on Monday and Tuesday, October 6-7, thousands of Israelis lined the streets to watch Porsche, Audi, and Ferrari race cars fly through the capital against the backdrop of the Tower of David, the Old City Walls, and other city landmarks. The second annual non-competitive Jerusalem Formula One Road Show had been [...]

    Read more →
  • Israel Sports NBA Superstar LeBron James Says He Wants to Visit Israel

    NBA Superstar LeBron James Says He Wants to Visit Israel

    Cleveland Cavaliers forward LeBron James expressed interest in visiting Israel someday, local news site Cleveland.com reported on Sunday. Speaking to Israeli reporters before the Cleveland Cavaliers’ preseason debut against Maccabi Tel Aviv, the NBA star said he had never visited the Jewish state but “I want to look forward to going there if I get an opportunity to.” When asked by an Israeli reporter if there was “any chance that LeBron James and Cleveland comes to Tel Aviv,” the athlete said [...]

    Read more →
  • Sports US & Canada Florida Rabbi Dominates Former Basketball Star Congressman in Hoops Showdown (VIDEO)

    Florida Rabbi Dominates Former Basketball Star Congressman in Hoops Showdown (VIDEO)

    A Florida-based Chabad rabbi put former basketball star, U.S. Congressman Curt Clawson to shame on the court when the two faced off one-on-one recently. A YouTube video, posted online on Tuesday, shows Rabbi Fishel Zaklos of Chabad of Naples shooting hoops with the Florida politician, who played basketball in high school and at Purdue University in Indiana. The game took place in the parking lot of the Chabad Jewish center run by Zaklos. During the 1-minute clip, Zaklos scores two impressive [...]

    Read more →
  • Sports US & Canada David Blatt’s Cleveland Cavaliers Rout Maccabi Tel Aviv, 107-80

    David Blatt’s Cleveland Cavaliers Rout Maccabi Tel Aviv, 107-80

    JNS.org – Less than five months after leading Maccabi Tel Aviv to its sixth European basketball title, David Blatt, now the head coach of the NBA’s Cleveland Cavaliers, routed his former team in an exhibition game on Sunday, with the Cavaliers dominating Maccabi 107-80 at the Quicken Loans Arena in Cleveland. The 20,562 fans in attendance witnessed Lebron James’s first appearance in a Cavaliers uniform since he left the club in free agency for the Miami Heat four years ago. [...]

    Read more →



Sign up now to receive our regular news briefs.