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...

  • Book Reviews Jewish Identity A Holistic Look at the Rebbe’s Life and Career (REVIEW)

    A Holistic Look at the Rebbe’s Life and Career (REVIEW)

    Did you know that in the entire Bible, only one birthday is mentioned and it is that of Pharaoh? And did you know that according to some scientists, by accepting Einstein’s Theory of General Relativity, it is impossible to prove or disprove that the sun is the gravitational center of our solar system? In his new book, REBBE, best-selling author Joseph Telushkin reveals many surprising and sometimes shocking details as he chronicles the life and teachings of the charismatic Rabbi [...]

    Read more →
  • Food Mitzvos New Jerusalem Eatery’s Uniform Pricing Seeks to ‘Help People Make It’

    New Jerusalem Eatery’s Uniform Pricing Seeks to ‘Help People Make It’

    JNS.org – Omelet sandwich: 5 shekels. Iced coffee: 5 shekels. Tuna sandwich: 5 shekels. Fresh-squeezed orange juice: 5 shekels. Cheese bureka: 5 shekels. There’s plenty more on the Cofizz menu, but you get the idea. Dani Mizrahi and Amir Amshalm, two Israeli men in their early 30s, asked themselves: Why not launch a take-out food joint in busy neighborhoods around Jerusalem where everything—and that means everything—goes for five shekels, or about $1.50. They’d seen the concept take off in Tel Aviv, where [...]

    Read more →
  • Arts and Culture Israel New Primetime Drama ‘Tyrant’ Filmed Entirely in Israel (VIDEO)

    New Primetime Drama ‘Tyrant’ Filmed Entirely in Israel (VIDEO)

    The new FX Network drama Tyrant was shot entirely in Israel, just 10 miles north of Tel Aviv, Bloomberg News reported last Tuesday. Tyrant follows the life of an Arab dictator’s second son Barry, played by Adam Rayner, who reluctantly returns home to the Middle Eastern nation of his birth to join the family business away from his suburban life in America. The elaborate set production for the primetime drama included a crew of 300 and a reported cost of over $3 million [...]

    Read more →
  • Arts and Culture US & Canada Supermodel: Jewish Mothers Are Constantly Trying to Set Me Up With Their Sons

    Supermodel: Jewish Mothers Are Constantly Trying to Set Me Up With Their Sons

    Skokie, Il-born 25-year-old Erin Heatherton (Erin Heather Bubley) is rocking the modeling world. And in a new interview accompanying a cover spread for Miami’s Ocean Drive magazine, she says Jewish moms are “constantly trying to set her up with their sons.” Imagine that – who would have thought? “The moms, they’re doing what they do. It doesn’t matter what country they live in, what city – grandmothers, too,” she admitted. “But I’m probably going to do that too one day.” Heatherton was [...]

    Read more →
  • Education Israel First Ever: Turkish Academics to Visit Israel Holocaust Museum for Seminar

    First Ever: Turkish Academics to Visit Israel Holocaust Museum for Seminar

    Some 15 Turkish university professors and lecturers will take part in a first of its kind seminar at Holocaust museum Yad Vashem’s International School for Holocaust Studies starting next week. The trip is especially significant as Holocaust denial is rampant in the Arab world. A Palestinian professor was recently forced to resign after he led a trip to the Nazi extermination camp Auschwitz. Participants in the week-long program at Yad Vashem will experience in-depth tours of the museum’s archives and [...]

    Read more →
  • Israel Music Guns N’ Roses Guitarist Rocks Solo Acoustic Version of Israeli National Anthem – Hatikva (VIDEO)

    Guns N’ Roses Guitarist Rocks Solo Acoustic Version of Israeli National Anthem – Hatikva (VIDEO)

    Ok, fans, question time. What do: Guns ‘n’ Roses shred-meister guitarist, Ron “Bumblefoot” Thal (aka Ronald Jay Blumenthal), “Hard Rock Hotel”, “Las Vegas” and Israel’s ”Hatikva” (The Hope) national anthem… all have in common? I know, you’re probably thinking, “Hmm, ‘One of these things is not like the other,’ would fit in here,” right? Um, no, turns out. Caught backstage by blogger Darren Garnick at the swanky Vegas gig in early June, Thal, acoustic guitar in hand, fretted out a sweetly melodic [...]

    Read more →
  • Arts and Culture Blogs David Letterman’s Sidekick on His ‘Dream Job,’ Jewish Upbringing

    David Letterman’s Sidekick on His ‘Dream Job,’ Jewish Upbringing

    JNS.org – A Jewish upbringing taught Paul Shaffer, David Letterman’s musical director and sidekick for 32 years, the value of giving back. After the Sept. 11, 2001 attacks, Shaffer served as musical director for “The Concert for New York City,” and in 2012 he accompanied Adam Sandler in “12-12-12: The Concert for Sandy Relief,” a fundraiser for people affected by Hurricane Sandy. He was also the national spokesperson for Epilepsy Canada. “My mother taught by example,” Shaffer said in an [...]

    Read more →
  • Jewish Identity Sports Coach David Blatt’s NBA Hiring Hailed as ‘Incredible’ for Jewish Community

    Coach David Blatt’s NBA Hiring Hailed as ‘Incredible’ for Jewish Community

    JNS.org – The National Basketball Association’s (NBA) Cleveland Cavaliers looked near and far during a five-week stretch for a head coach, and they finally found their man—in Israel. David Blatt, who coached Maccabi Tel Aviv to the Euroleague and Israeli league basketball championships this year, struck a deal to become the 20th coach in the history of the Cavaliers. The selection was immediately celebrated by basketball players Tamir Goodman and Mark Sack, both from the Cleveland area, and one of [...]

    Read more →



Sign up now to receive our regular news briefs.