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March 4, 2013 2:12 pm

The Myth of Jewish Settlements in International Law

avatar by Daniel Mandel

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View of Har Homa in the West Bank. Photo: James Emery.

By permitting Jewish residence in the West Bank, is Israel ignoring international law? Ruth Gavison, a law professor at Jerusalem’s Hebrew University, seems to thinks so.

Gavison criticized the report issued last year by former Israeli Supreme Court Justice Edmund Levy which affirmed the legality of building under international law.

Yet, the law was clear long before Justice Levy produced his report: the territory of the West Bank was earmarked for Jewish settlement in 1920 at the San Remo Conference that drafted the League of Nations Charter. This decision, enshrined in the British Mandate for Palestine that shortly followed, has never been superseded by an internationally binding agreement.

The 1947 UN partition plan, which sought to create Arab and Jewish states, could have been such an agreement, but it was rejected by the Arabs. Being a General Assembly resolution, the plan had no legal force of its own.

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In contrast, the 1993 Oslo Accords do possess legal force but, but as these contain no prohibition on the existence and growth of these Jewish communities, Jewish rights remain unimpaired. Whether one supports or opposes Jewish residence in the West Bank, all should be able to agree on this.

Yet Gavison laments, “The courts have never addressed the significance and ramifications of the injunction against an occupying state transferring its population into conquered territories.”

The injunction to which she refers is Article 49 of the Fourth Geneva Convention, which prohibits “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.” It also ordains that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The reason Israeli courts have not addressed Article 49’s applicability is straightforward – Palestinians are not being deported or forcibly transferred from the West Bank to another territory. Jews are not being deported or transferred from Israel to the West Bank; they are moving there freely of their own will.

Moreover, the Fourth Geneva Convention deals only with territories belonging to a sovereign power. In contrast, the West Bank, illegally seized by Jordan in 1948 and captured by Israel following Jordanian attack in 1967, remains unallocated territory under international law. Only Israeli annexation or an Arab-Israeli agreement on its status could alter this – something that has not occurred. Accordingly, Article 49 has no bearing on the situation.

Why has Gavison ignored the decisive legal and commonsensical objections to criminalizing Jewish residence in the West Bank? Because she is a proponent of a perversion of international legal norms which holds that voluntary Jewish settlement in the West Bank amounts to illegal “transfer.”

On what basis? Gavison refers to a recent report on behalf of the UN Human Rights Council – a body Gavison herself admits is “biased, anti-Israel” – which condemned Jewish settlements as “illegal.” In her opinion, however, its view is valid, because it represents “the maturation of a prolonged process” which goes back to the 1998 Rome Treaty that established the International Criminal Court (ICC). The ICC, Gavison claims, “had the Israeli-Palestinian conflict in mind when choosing the wording of this definition” outlawing transfer of populations as a war crime.

Naturally, this makes no sense. First, there has been no binding legal decision affirming this novel interpretation of the law. Second, arbitrary redefinition of a peremptory legal norm – such as a war crime – is a dangerously undemocratic procedure that clashes with the traditionally consensual nature of international law considered necessary to state sovereignty.

There was a time when a war crime was understood to mean such things as murdering enemy civilians or putting them to forced labor in camps. Now, according to Gavison’s Kafkaesque process of legal alchemy, it can mean residence in the West Bank – if one is an Israeli Jew.

Yet, as absurd as the idea is, Gavison points to something nonetheless real that highlights a general problem for free societies, not merely Israel: time does tend to work in favor of processes of legal perversion, when new, sometimes scarcely-known, treaties or “norms” are increasingly given standing by transnational forums and courts with little interest or sympathy for the values and interests of free societies.

The day arrives thus when a new legal fact has been created, no matter how absurd or noxious. In respect of Article 49, that day hasn’t arrived, but Palestinian agitprop is working on it.

Therefore, it is not enough for Israel to restate the law. It must explore avenues old and new – commissioning authoritative legal opinions, working to obtain a US Congressional resolution on the subject, seeking repudiation by democratic governments of the mangling of Article 49, detailed refutation of each and every contrary assertion by governments and international organizations, to name several – to prevent today’s absurdity becoming tomorrow’s settled law.

Dr. Daniel Mandel is author of H. V. Evatt and the Establishment of Israel(Routledge, 2004) and  Director of the Zionist Organization of America’s Center for Middle East Policy. This article originally appeared in the Jerusalem Post.

The opinions presented by Algemeiner bloggers are solely theirs and do not represent those of The Algemeiner, its publishers or editors. If you would like to share your views with a blog post on The Algemeiner, please be in touch through our Contact page.

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  • Jewish Rights to Palestine Were Internationally Guaranteed
    In the first Report of the High Commissioner on the Administration of Palestine (1920-1925) presented to the British Secretary of State for the Colonies, published in April 1925, the most senior official of the Mandate, the High Commissioner for Palestine, underscored how international guarantees for the existence of a Jewish National Home in Palestine were achieved:

    “The [Balfour] Declaration was endorsed at the time by several of the Allied Governments; it was reaffirmed by the Conference of the Principal Allied Powers at San Remo in 1920; it was subsequently endorsed by unanimous resolutions of both Houses of the Congress of the United States; it was embodied in the Mandate for Palestine approved by the League of Nations in 1922; it was declared, in a formal statement of policy issued by the Colonial Secretary in the same year, ‘not to be susceptible of change.’ ” 29

    Far from the whim of this or that politician or party, eleven successive British governments, Labor and Conservative, from David Lloyd George (1916-1922) through Clement Attlee (1945-1952) viewed themselves as duty-bound to fulfill the “Mandate for Palestine” placed in the hands of Great Britain by the League of Nations.

    PS
    The Oslo Accords are null and void as Stated by Abbas at the UN in the summer of 2015. The Arab/Palestinians never abided by its terms and never intended to abide by its terms. I was a deceptive way to get control of the territory as a prelude to commit terror and take over the rest of Israel. The best example you have is the terrorist state in Gaza and the increased terror and violence from the Arabs in Judea and Samaria aka The West Bank.
    YJ Draiman

  • In Israel; if we do not fight for our rights, we will not be here. It is a matter of survival.
    Abbas the finances of the Munich Massacre.
    Complain on Israel ignoring its Jewish roots and heritage of our nation.
    The minute the U.N. its representatives or anyone else call Judea and Samaria aka West Bank occupied territory, than there is nobody to talk to. Jordan is also occupied territory. Moreover, all the Arab countries established after WWI are also occupied territory; they were all allocated their territory by the Supreme Allied Powers at the same time they allocated Palestine aka The Land of Israel as the National Home of The Jewish people in their historical land as international law. The Jewish people must fight for their rights and heritage no concessions. Past concessions and compromise have proved counterproductive and only increased terror and violence. Stop deluding your-selves the Arabs do not want peace; they want all of Israel without the Jews. When the Arabs teach and train their children to hate, commit terror and violence, and their charter calls for the destruction of Israel. You are dealing with the enemy and not a peace partner. NEVER AGAIN. Stop the Ghetto Mentality.
    The Arabs attacked Israel with superior men-power and weapons, in four wars since the British left The Land of Israel aka Palestine in 1948. The lost all four wars in utter defeat. It is time for the Arabs to face reality. The Land of Israel west of the Jordan River which was liberated in four defensive wars; will be retained by Israel and its Jewish population for eternity.
    It is enough, that the Arabs have Jordan, which is Jewish territory, and the homes and 120,000 sq. km. of land the Arabs confiscated from the expelled million Jewish families, who lived in the Arab countries for over 2,500 years and now were resettled in Israel and comprise over half the population.
    YJ Draiman

  • The UN must be dismantled. It is a criminal enterprise.

    As an example of the way in which the principles of pan-Arab national self-determination then applied to Israel, Stone cited:
    a letter dated February 20, 1980 to the Secretary-General, transmitted for UN circulation to the General Assembly and the Security Council in connection with item 26 of A/35/11000-S/13816 (Situation in the Middle East) [which] declared a propos of inclusion in the Charter of a principle of non-use of force:
    “The principle of non-use of force shall apply to the relations of the Arab Nation and Arab States with the nations and countries neighboring the Arab homeland. Naturally, as you know, the Zionist entity is not included, because the Zionist entity is not considered a State, but a deformed entity occupying an Arab territory. It is not covered by these principles.

  • Wallace Edward Brand

    To the moderator.

    The foregoing seems to have changed something I had written. It should read The Arabs and the Jews presented their claims to the Principal Allied War Powers at the Paris Peace Talks.The Jewish claims were broadly seen as a request for a Jewish National Home as a prelude to a reconstituted Jewish State.

    The corrected version follows:

    Ben David ignores that Article 2 of the Geneva Convention is directed to State Action, not individual action. He takes Israel to task for refusing to convert a provision intended to prohibit state action, to a provision requiring a state to prohibit individual action. This would prevent an individual from taking up residence where he wants to live, motivated not by pressure of the state, but by religious or economic or patriotic motives. He should look at the UN Declaration of Human Rights, particularly at Articles 13 and 15 to determine whether or not Israel acting as he wants it to would be in violation of that UN Declaration.
    The 1922 Mandate was a trust according to British Barrister Duncan Campell Lee in a lecture in May, 1921 at Universty College, London University. It became published as a short book that has been republished by Amazon and is available on line. See: The Mandate for Mesopotamia and the Principle of Trusteeship in English Law. If the Mandate is a trust, what is the trust res? Obviously it is the political rights over Palestine.”¨At the time of the Balfour Declaration, to avoid an antidemocratic government, the recognition of World Jewry as exclusive owners of the political rights to Palestine was conditioned on the Jews being given only a beneficial right with legal dominion over the political rights being granted to the mandatory power, Britain. At San Remo the French tried to insert “political rights” in its saving clause of “civil rights and religious rights” but the other parties would not accept this proposed amendment of the Balfour policy. This beneficial interest in the political rights was intended to continue until the Jews in Palestine were a majority, and they were capable of exercising sovereignty just as any modern European State. Then the second step would kick in, the Jew’s legal dominion over the political rights would vest.”¨For evidence of this two step process, see a memorandum of the British Foreign Office dated September 19, 1917 written by Arnold Toynbee and Lewis Namier, a statement of Winston Churchill to an Arab delegation visiting London following WWI referred to in the Arab claims to UNSCOP in 1948, David Lloyd-George’s statement in the Paris Peace Talks in 1919 and the briefing documents for the American Delegation to those talks.”¨These two standards had been met by 1950. In 1947 the UN General Assembly implied in enacting the Partition Resolution that it had found the Jews capable of exercising sovereignty even though the partition had no continuing force and effect, and by 1950 the Jews had a majority population over the area they governed. In any event, any equity court would have given the trust res to the beneficiary on the abandonment of the trustee of his trust, unless the beneficiary were thought to be incapable — but the UN did not appoint another trustee.”¨The Arabs and the Jews presented their claims to the Principal Allied War Powers in 1919 at the Paris Peace talks. These were broadly seen as a request for a Jewish National Home as a prelude to a reconstituted Jewish State. The Allies did not recognize the Arab claim, instead they expressly adopted the”¨ British Balfour policy including it word for word in their San Remo Resolution. By 1922 52 states had approved this two step process, the 51 in the League of Nations and the United States. The recognition was saved by Article 80 of the UN Charter. Those 52 states are estopped from contesting their previous acknowledgment of Jewish ownership of the political rights, at the very least to Palestine west of the Jordan. It is also saved by the doctrine of “acquired rights”. This principle already existed when the Anglo-American Convention came to an end simultaneously with the termination of the Mandate for Palestine on May 14-15, 1948. It has since been codified in Article 70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This was apparently overlooked by Ben David.”¨Ever since 1920 the Arabs residing in Palestine and in surrounding states have attempted by threats of violence and actual violence to take these political rights from the Jews. If they were a state, that would be prohibited by Article 2 (4) of the UN Charter. In the US, when the Mafia attempts or is successful in taking someone else’s tangible or intangible property, we call it extortion.

  • Gee

    I guess asking somebody to actually read the Article in question is too much as well.

    For the land to be occupied it has to meet three conditions according to the Geneva Convention.

    One only a “High Contracting Party” can claim territory.

    Two that “High Contracting Party” must have a sovereign claim to the land.

    Three there cannot be any other “High Contracting Parties” with a sovereign claim to that territory.

    Let’s look at the facts – Israel is a “High Contracting Party” – the Arabs are not nor have they ever been.

    Israel has a sovereign claim to the land. The Arabs do not.

    Israel is the only “High Contracting Party” with a sovereign claim.

    In short the Arabs meet none of the conditions and Israel meets all of them. The Arabs are illegally occupying our land

    • Ben David

      You omitted to read this section of Art 2 of the Geneva Convention (GC):

      “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof”

      The idea that the GC doesn’t apply because the Palestinians were not a High Contracting State has been rejected by just about everyone with a degree in International Law.

      It is also inconsistent with:

      – the ICRC’s own opinion (they were involved in drafting the GC);
      – SCR 237;
      – Israel’s own Supreme Court which applied the GC in the occupied territories;
      – the approach of the US and UN in applying the GC to non-state actors like Al Qaeda, Hamas and Hizb; and
      – an interpretation based on the Vienna Convention on the Law of Treaties in relation to the context and purpose of the GC; this being to protect the vulnerable including inhabitants too weak or undeveloped to have sovereignty. The whole of pre-colonial Africa would have been up for grabs were this not the case.

      The Levy report that keeps getting dredged up and all the silly arguments based on the 1920 Mandate, Art 80 and San Remo Conference have been rejected by every nation on earth (other than Isr). The US, Canada and the UK do not accept it.

      It rests on a completely flawed argument. The 1920 Mandate cannot have any relevance because it expired at midnight on 14 May 1948. Nothing transferred under Art 80 because the Mandate didnt confer Sov rights at all, rather a mere right to a “national home” which is not the same thing at all. The Mandate was predicated on Arabs and Jews living together in 1 state(“it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities”). This idea failed completely and Partition resulted. Anyone who still believes the rights in the Mandate can still be relevant and enforced 90 years later is living in the past.

      Lastly the ICJ (including Jewish Judge Buegenthal) regards the WB as occupied under the GC as did Theodor Meron, Israel’s own legal advisor in 1969.

      Israel will lose this argument hands down if it finds itself in the ICC. It is time for Israel to stop flogging this long dead horse. In the words of Monty Python, “this parrot is dead”.

      • Wallace Edward Brand

        The “Jewish National Home” was a part of a two step process. The Jews did not want immediate statehood because of their small number in 1917. They wanted the unrestricted right to settle in Palestine until they became a majority and had the capability of exercising sovereignty. The Palestine Mandate was a trust. Trusts do not expire when the trustee resigns. The Palestine Mandate was a self executing document in which the trust vested when the standards were met. I can put in trust a Ming Dynasty vase for my young daughter who is to get it when she is 35 years old if she avoids drugs. If she meets those standards, no further action by any tribunal is required for her to obtain legal dominion over them. Recognition of a state may be tacit under the 1933 Montevideo Convention. Approval of the intention of statehood at a later time is sufficient for tacit recognition of a state. Confirmation of the Palestine Mandate by at least 52 states met that requirement.

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