THE JEWISH RIGHT TO LIVE IN WESTERN PALESTINE: The Irrelevancy Of ‘Belligerent Occupation’ and the 4th Geneva Convention

THE JEWISH RIGHT TO LIVE IN WESTERN PALESTINE: The Irrelevancy Of ‘Belligerent Occupation’ and the 4th Geneva Convention

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". [1] 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. [2]

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 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 judgments 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-defense 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 provide 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.

Stone writes:

"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 theWest 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 labor 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 government 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:

1.    In 24.4.1920 the nations of the world decided in The San Remo Conference to give the Palestine Mandate to the U.K. as a trustee. Article 6 of this Mandate imposed on the British the obligation to urgently encourage and facilitate dense Jewish population in Palestine. This area included Yesha and also included Transjordan (Eastern Palestine) and the Golan. Jewish national rights asserted in the Mandate also include forbidding transfer of the area out of Jewish control. The Mandate emphasized that while all inhabitants of Palestine were given "civil and religious rights," only the Jews were given political rights in Palestine.[3] Later in September 1922 in Article 25 the council of the League of Nations, at the request of the British, allowed the British to temporarily "postpone or withhold" this encouragement of Jewish settlement in Transjordan.

2.    When in 1945 the United Nations was founded, article 80 in chapter 12 of the Charter of the United Nations explicitly preserve the national rights of nations obtained by virtue of a mandate of the League of Nations. Since these national rights include the right of Jews for dense settlement in areas that include Yesha, this provides the legal basis in international law for the obligation of all the nations of the world to urgently encourage dense Jewish settlement in Yesha.

3.    In the subchapter entitled "Continuing Obligations of the Mandate" in Stone's book, this principle of the invariance of national rights upon the transition from the League of Nations to the United Nations was tested in the case of South West Africa (Namibia). Here South Africa was the analog of the UK acting as a trustee and Germany was the analog of Turkey who lost the land. Later South Africa tried to claim that there was no longer a Mandate because of the dissolution of the League. But International Court of Justice in 1950 did not agree and held that the substantive obligations of the mandate over that territory continued in force despite the dissolution of the League of Nations. This test case was also invoked by the most reputed professors of international law, Professor Eugene Rostow [4], Professor Julius Stone, Professor Steven Schwebel as well as others, as a further confirmation that Jewish National Rights, according to the League's mandate in Palestine, are intact to the present day.

4.    A major central goal of Stone's erudite book is to explain why the stream of UN resolutions about Palestine does not cancel these fundamental Jewish rights according to the Palestine "sacred trust of civilization" as it was called.[5] For example, the most basic resolution, 242, does not require Israel to retreat from all the territories and also recommends a retreat to "secure and recognized borders" in the context of total peace.[6] The report to president Johnson in 1968 of the commander in chief of the American Army said that "secure and recognized borders" means retaining Yesha and the Golan.[7] It can also be argued that Israel has fulfilled resolution 242 in that she had retreated from the Sinai - which is more than 90% of the territories she held at the end of Six Day War - and Sinai was included in that decision. Similarly, resolution 181, the 1947 division resolution, was aborted at birth both because the Arabs did not accept it and because of their aggression at the time.

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).

5.    There are many sources of illegalities in Sharon's uprooting program. These include the violation of basic human rights (Jews are allowed to live everywhere in the world), the anti-Semitic racist element (the singling-out of Jews), the non-democratic procedure and the stealing of votes, the intimidation of the opposition and the vilification of Israel's selfless heroic pioneers. Various other violations of law - including violation of the law of return and the transfer of national land - are enumerated by Howard Grief in his article "The Transfer of Jews under Prime Minister Sharon's Unilateral Disengagement Plan" (http://www.think-israel.org/grief.transfer.html). These violations can be considered as treason.

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 Civilization" 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.