Thursday, July 05, 2012

Arlene Kushner On Israel's Sovereignty Over The West Bank In International Law

From Arlene Kushner:
July 5, 2012:

What Really Counts

I could go on at length about the game playing that passes for political dialogue with regard to a replacement for the Tal Law.  I could track the events from hour to hour and explain each party's position.  But I'm not going to do that.  Suffice it to say that the coalition has not yet fallen apart as I write (and that right now Netanyahu may be on the edge of caving to Mofaz's threats).  There's a lot of juggling going on; in due course we'll see what's what.

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What I would like to focus on today are the findings of a committee headed by retired High Court Justice Edmond Levy.  The committee had been charged by Prime Minister Netanyahu with examining the legal status of "outposts" -- small communities in Judea and Samaria that are not fully authorized.

The findings are stunning and constitute a major victory for all who believe in the right of Jews to settle the land (emphasis added):
"According to international law, Israelis have a legal right to settle all of Judea and Samaria, at the very least the lands that Israel controls under agreements with the Palestinian Authority.  Therefore, the establishment of Jewish settlements [in Judea and Samaria] is, in itself, not illegal."
"The lands that Israel controls under agreements with the Palestinian Authority" refers to Area C under Oslo, which is under Israeli civilian and military (security) control.  This includes every Jewish community and the Jordan Valley:
Credit: Lifesource
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What is more:
"...considering the testimonies heard, the basic conclusion is thatfrom an international law perspective, the laws of 'occupation' do not apply to the unique historic and legal circumstances surrounding Israel's decades-long presence in Judea and Samaria."

"Likewise, the Fourth Geneva Convention [relative to the Protection of Civilian Persons in Time of War] on the transfer of populations does not apply, and wasn't intended to apply to communities such as those established by Israel in Judea and Samaria."
And continuing:
"dozens of new neighborhoods have been erected, without government authorization and at times without a contiguous link to the mother community. Several were built outside the legal jurisdiction allotted to the community. This prevalent phenomenon has required large amounts of funding therefore the committee finds it hard to believe that it was done without the government's knowledge."
Further, as reported by Israel Hayom:
"...the committee declared that the encouragement provided by the government to the settlement enterprise constituted authorization. According to the committee, communities that were built on land owned by the state, or privately owned Israeli land, with the help of government bodies could not be classified as 'unauthorized' due to the absence of an official government decision to authorize them. The very assistance provided by the government in their establishment constitutes implicit authorization.
"Under these circumstances, the report concluded, the evacuation of such communities would be impractical and another solution, such as compensation or land swap, should be implemented. Therefore, the committee recommends in its report, the government should avoid issuing demolition orders for these communities because it is the government itself that created this situation in the first place.
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This, my friends, is big stuff.  How many times has it happened, that various government ministries have put in roads, provided for electricity and sewers, been involved in construction, for a given community in Judea and Samaria only to have a pompous Minister of Defense declare the community "illegal" or "unauthorized" because he didn't affix his signature to a particular piece of paper?  An outrageous situation. What our common sense told us all along, an officially appointed body now confirms.
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According to the Israel Hayom report, the committee recommends that:
  • It must be made very clear to the proponents of the settlement enterprise and to the political echelon that they are to operate only within the confines of the law, and the various law enforcement institutions must decisively enforce the law in the future.

  • The government must clarify its position on the issue of Israeli settlement in Judea and Samaria to prevent varying interpretations of its policy; a new community will only be built after the government or an authorized ministerial committee has approved it; the expansion of a community outside the bounds of its authorized jurisdiction must first be approved by the defense minister or a ministerial committee on settlements, in coordination with the prime minister.

  • The government should speed up the examination of the communities whose status isn't defined. The committee suggested that the government define these disputed communities' status in terms of evacuations or demolitions only after a thorough investigation and a full legal proceeding. In order to ease the lives of the residents, the committee suggested the establishment of special courts in Judea and Samaria specifically to settle land disputes.

  • This addresses situations such as the horrendous one we've now seen with the evacuation of residents from houses in Ulpana before the ownership of the land has been adjudicated -- a ridiculous situation blatantly unfair to residents who are evicted.
  • Israelis and Palestinians should record their land purchases within an agreed upon time frame of between four and five years, after which anyone who did not complete the process would lose rights to property.
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The Levy report was submitted to the Attorney General Yehuda Weinstein on Tuesday. What procedure will be followed here, how seriously these recommendations will be discussed, is not yet clear.  Netanyahu is not legally bound by these recommendations, but it is to be expected that they would influence decisions made by him and his cabinet.
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Justice Edmond Levy and his committee have now determined that from a legal standpoint neither the "laws of occupation" nor the Fourth Geneva Convention apply to Israel's situation in Judea and Samaria. 
Not for a microsecond do I imagine that this will impact what the rest of the world says about us.  Those -- and they are legion -- who wish for political reasons to call us "occupiers" will continue to do so.  Those who choose to argue that we are on "Palestinian" land will carry on with their agenda.
What is important here is that Israelis not buy into the notion that we are "occupiers."  As a nation, we must be firm in our sense of our rights. And to that end, this report can provide an important confirmation.
But the sense of being confirmed in our rights should begin at the top.  I am hoping -- perhaps naively -- that this report will impact government positions.  It ought.  It is time for our government, bolstered by these legal opinions, to give ambiguous-free messages regarding our rights in the land. And to set in place policies that firmly reflect that message.
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With regard to matters in Judea and Samaria:
The High Court has granted an extension to the State on taking down the five contested houses in Ulpana from which the residents have already been evicted.  (From which they would NOT have been evicted if the Levy guidelines had been in place.) The original deadline has now been extended to November 15.  The government, going into court with detailed plans, explained that more time was required because the houses were to be taken apart piece by piece in order to be reconstructed elsewhere.
This, at a very bare minimum, would be expected.  But the lawyer for Yesh Din -- the NGO that brought the issue to the Court in the first place -- had said that they would be objecting and demanding that the original timetable was adhered to.  A demonstration of exactly how perverse they can be.
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Additionally, the High Court, petitioned by residents of Migron, have agreed to a hearing on July 15. This is with regard to the purchase of the contested land, which should overturn the eviction that has been ordered.
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Last I wrote, I referred to news about Egyptian President Morsi's plans to visit Iran next month for a conference -- apparently reported first by a Lebanese news source and then picked up in Egypt.  Since then, Morsi has issued a half-hearted denial of this, too.  Keeping tabs on what he really says and intends is not going to be an easy job.
(He is said, strangely, to be seeking the release of the blind Egyptian sheikh, Omar Abdel-Rahman, who is serving life in a US prison for his role in the 1993 bombing at the World Trade Center that killed six people.)
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Speaking of Iran... The meeting of technical personnel from Iran and the P5 + 1 nations was held in Istanbul two days ago.  Presumably some technical details of proposals were discussed.
The only thing resolved: To meet again.  How long, precisely, can this go on? 
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An Iranian lawmaker, Ebrahim Agha-Mohammadi, said on Monday that the National Security and Foreign Policy Commission has prepared a bill which calls for the closure of the Strait of Hormuz in response to the recent EU oil embargo on Iran.
And the United States has deployed ships and aircraft in the Persian Gulf region -- a message to Iran that "the military option is on the table" if an attempt is made to block Strait. 
Interesting...in the end, it may be the issue of oil and not nuclear weapons that brings out the American fighting spirit.
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Secretary of State Hillary Clinton will be in Paris tomorrow, and while there will meet with Mahmoud Abbas (who is reported to not be very enthusiastic about prospects). 
Then, after some days of visiting nations in the Far East, she will circle back and visit Egypt, where she will meet with Morsi, and "express the United States' support for Egypt's democratic transition and economic development." 
Following this, on July 16-17 she will be here to discuss the "peace process."
Why she imagines there's any hope is beyond me.  As of two days ago there were still protesters in Ramallah who object to PA negotiations with Israel. "Down with Oslo," they were crying.
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The PA is attempting to be seated with the status of a full state at an arms trade treaty conference that is to take place in NY.  The Israeli government is lobbying internationally to prevent this from happening.
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Former director of the CIA, James Woolsey, reversing an earlier position, has written a letter to the Wall Street Journal in which he advocates clemency for Jonathan Pollard:
"When I recommended against clemency, Pollard had been in prison less than a decade.
"Today he has been incarcerated for over a quarter of a century under his life sentence.
"Of the more than 50 recently convicted Soviet bloc and Chinese spies, only two—Aldrich Ames and Robert Hanssen—also received life sentences, and two-thirds of these some-50 enemy spies served or have been sentenced to less time than Pollard has already served.
"The recently convicted spies for such countries as Saudi Arabia, Ghana, Ecuador, Egypt, the Philippines and South Korea are serving less than a decade.
"One especially damaging Greek-American spy, Steven Lalas, received a 14-year sentence, just over half of what Pollard has already served.
"Pollard has cooperated fully with the U.S. government, pledged not to profit from his crime (e.g., from book sales), and has many times expressed remorse for what he did.
"There is absolutely no reason for Pollard to be imprisoned for as long as Ames and Hanssen, and substantially longer than spies from other friendly, allied, and neutral countries."
And here, my friends, is the clincher.  Woolsey ended with this:
"For those hung up for some reason on the fact that he's an American Jew, pretend he's a Greek- or Korean- or Filipino-American and free him." (Emphasis added)
"For some reason..." As close to the charge of anti-Semitism that he's going to get.

Read: Ex-CIA head Woolsey calls for Pollard clemency
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© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution.

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