Occupied in thoughtTechnorati Tag: Israel and West Bank and International Law.
Note the first paragraph of Validate Settlements, Israeli Panel Suggests by Isabel Kershner of the New York Times:
Flouting international opinion, an Israeli government-appointed commission of jurists said Monday that Israel’s presence in the West Bank was not occupation and recommended that the state grant approval for scores of unauthorized Jewish settlement outposts there.
The committee’s legal arguments, while nonbinding, could provide backup for the government should it decide to grant the outposts retroactive official status. But such a move would inevitably stir international outrage and deal a significant blow to prospects for an Israeli-Palestinian peace settlement.Why did Kershner use the term "international opinion" not "international law?" Also what did she mean by "non-binding?" This seems to be a legal opinion, not an agreement.
If the use of "opinion" was intentional that means that the international outrage is largely manufactured.
Kershner reports further:
Most of the world views the areas that Israel conquered from Jordan in the 1967 war, and where the Palestinians want to establish a future state, as occupied territory, and all Israeli construction there as a violation of international law. Israel distinguishes between its 120 or so established settlements in the West Bank and those that went up since the 1990s with some government support, but without formal government authorization.The three-member committee, led by Edmund Levy, a retired Supreme Court justice, confirmed a position long held by Israel that those territories are not occupied, since Jordan’s previous hold over them was never internationally recognized, and that their fate must be determined in negotiations.Again, Kershner doesn't cite a specific legal reason why settlements are "a violation of international law," just that "[m]ost of the world views" it that way. When she cites the reasoning of the committee, she actually provides the legal reasoning.
I have no ideas if Kershner used the terms intentionally or not.
Of course Fatah objected:
Fatah, the mainstream Palestinian national movement led by President Mahmoud Abbas, issued a statement saying that the Levy committee’s conclusions were a “farce” that “mocked and defied the international community.”Palestinian officials noted that the report was published on the anniversary of the July 9, 2004, advisory opinion of the International Court of Justice in The Hague, which determined that Israel’s construction of its barrier across the 1967 boundary, in West Bank territory, violated international law.But the ICJ is a highly politicized body and its ruling is based on an assumption that the territories capture by Israel in 1967 are occupied. The Levi committee shows that those territories are not occupied.
The only independent Israeli sources Kershner cites are critical of the decision.
Israeli human rights organizations opposed to settlement slammed the report.
“The Levy Committee’s suggestion to view illegal statements or actions by various ministers as government consent undermines the principles of the rule of law and good governance,” Michael Sfard, the legal adviser of Yesh Din, said in a statement.The Association for Civil Rights in Israel said that the report’s conclusions were “legally unfounded and their purpose is to authorize and deepen the injustice that Israeli governments are performing in the Occupied Territories in the past 45 years.”Of course Israeli "human rights organizations" are "opposed to settlement" by definition. But that doesn't make their opinion legally correct.
Dore Gold wrote in From 'Occupied Territories to Disputed Territories' :
Israel entered the West Bank and Gaza Strip in the 1967 Six-Day War. Israeli legal experts traditionally resisted efforts to define the West Bank and Gaza Strip as "occupied" or falling under the main international treaties dealing with military occupation. Former Chief Justice of the Supreme Court Meir Shamgar wrote in the 1970s that there is no de jure applicability of the 1949 Fourth Geneva Convention regarding occupied territories to the case of the West Bank and Gaza Strip since the Convention "is based on the assumption that there had been a sovereign who was ousted and that he had been a legitimate sovereign."In fact, prior to 1967, Jordan had occupied the West Bank and Egypt had occupied the Gaza Strip; their presence in those territories was the result of their illegal invasion in 1948, in defiance of the UN Security Council. Jordan's 1950 annexation of the West Bank was recognized only by Great Britain (excluding the annexation of Jerusalem) and Pakistan, and rejected by the vast majority of the international community, including the Arab states.And after Oslo:
Under Oslo, Israel transferred specific powers from its military government in the West Bank and Gaza to the newly created Palestinian Authority. Already in 1994, the legal advisor to the International Red Cross, Dr. Hans-Peter Gasser, concluded that his organization had no reason to monitor Israeli compliance with the Fourth Geneva Convention in the Gaza Strip and Jericho area, since the Convention no longer applied with the advent of Palestinian administration in those areas.13Upon concluding the Oslo II Interim Agreement in September 1995, which extended Palestinian administration to the rest of the West Bank cities, Foreign Minister Shimon Peres declared: "once the agreement will be implemented, no longer will the Palestinians reside under our domination. They will gain self-rule and we shall return to our heritage."14Since that time, 98 percent of the Palestinian population in the West Bank and Gaza Strip has come under Palestinian jurisdiction.15 Israel transferred 40 spheres of civilian authority, as well as responsibility for security and public order, to the Palestinian Authority, while retaining powers for Israel's external security and the security of Israeli citizens.Early on in the essay, Gold explains why the term "occupation" has been used in this context:
Three clear purposes seem to be served by the repeated references to "occupation" or "occupied Palestinian territories." First, Palestinian spokesmen hope to create a political context to explain and even justify the Palestinians' adoption of violence and terrorism during the current intifada. Second, the Palestinian demand of Israel to "end the occupation" does not leave any room for territorial compromise in the West Bank and Gaza Strip, as suggested by the original language of UN Security Council Resolution 242 (see below).Third, the use of "occupied Palestinian territories" denies any Israeli claim to the land: had the more neutral language of "disputed territories" been used, then the Palestinians and Israel would be on an even playing field with equal rights. Additionally, by presenting Israel as a "foreign occupier," advocates of the Palestinian cause can delegitimize the Jewish historical attachment to Israel. This has become a focal point of Palestinian diplomatic efforts since the failed 2000 Camp David Summit, but particularly since the UN Durban Conference in 2001. Indeed, at Durban, the delegitimization campaign against Israel exploited the language of "occupation" in order to invoke the memories of Nazi-occupied Europe during the Second World War and link them to Israeli practices in the West Bank and Gaza Strip.4Contrary to international opinion and the claims of Israeli human rights organizations, it is the loaded use of the term "occupation" that makes peace less likely, not the Israeli presence in Judea and Samaria.
A few years ago David Phillips wrote The Illegal Settlement Myth in Commentary. (h/t Jonathan Tobin):
Thus, if the charge that Israel’s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordan’s renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six-Day War, argued that the West Bank should be considered “unallocated territory,” once part of the Ottoman Empire. From this perspective, Israel, rather than simply “a belligerent occupant,” had the status of a “claimant to the territory.”To Rostow, “Jews have a right to settle in it under the Mandate,” a right he declared to be “unchallengeable as a matter of law.” In accord with these views, Israel has historically characterized the West Bank as “disputed territory” (although some senior government officials have more recently begun to use the term “occupied territory”).Because neither Great Britain, as the former trustee under the League of Nations mandate, nor the since deceased Ottoman Empire—the former sovereigns prior to the Jordanians—is desirous or capable of standing up as the injured party to put Israel in the dock, we must therefore ask: On what points of law does the case against Israel stand?Phillips also notes that after the Six Day War, Israel was eager to make peace with its neighbors who rejected such overtures out of hand. Had the Arabs been willing to make peace with Israel forty five years ago, there'd be no "occupation." (There also probably would have been no "Palestinians.") The claims of Israeli occupation seems less an exercise in good faith than an effort to get a "do over." Phillips point about Israel's willingness to make peace in the wake of the Six Day War, has been reinforced by the recent release of Israeli government deliberations after that war.
In Who is being Intransigent? Michael Curtis writes:
Although there were differences on the issues of the destiny of the West Bank, and on whether peace treaties should be based on international frontiers, ministers all spoke of peace with security arrangements. The positive answer to the security issue was finally approved by a majority of one, 10 to 9: it was decided that a peace agreement should ensure freedom of navigation in the Strait of Tiran, the Gulf of Aqaba, and the Suez Canal; the freedom of flight over them, and the demilitarization of the Sinai Peninsula.The formula agreed to by unanimity on June 19, 1967 was that "Israel proposes the conclusion of peace treaties with Egypt and Syria on the basis of the international frontiers and Israel's security needs." This proposal was presented to both Egypt and Syria, but no positive response came from either. Instead, the Arab Summit leaders at Khartoum announced on September 1, 1967 the three "nos."As a result of Khartoum, Prime Minister Eshkol wrote a month later, "I doubt whether the government would approve the decision of June 19 exactly as it stands." In view of the continuing Arab leaders' refusal to negotiate, the decision did indeed become invalid.Jeffrey Goldberg argued in the Atlantic:
What this means, if implemented, is simple: The Israeli government would treat West Bank land as if it were land in Israel proper (pre-1967 Israel). Now, of course, if Israel were to treat the land of the West Bank as part of Israel, it would necessarily follow that it would have to treat the people who live on that land as Israeli citizens, extending them full voting rights, just as it extends citizenship to people who live in Israel proper, regardless of ethnicity. So: The natural consequence of this notion, if it is carried through to law, would be to extend voting rights to the Palestinians of the West Bank. This would spell the end of Israel as a Jewish-majority democracy, but the right-wing in Israel seems more enamored of land-ownership than it does of such antiquated notions as, you know, Zionism.James Taranto deflected this argument:
The U.S. has several unincorporated territories--insular possessions over which America exercises sovereignty but which are not part of the U.S. They are, in declining order of population (and omitting unpopulated islands), Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa and the Northern Mariana Islands....
Residents of these territories do not have the right to vote in presidential elections. They have no representation in the Senate and only a nonvoting delegate or (in the case of Puerto Rico) resident commissioner in the House.
Goldberg and others who repeat this trope need to explain why Israel can't have unincorporated territories if the U.S. can.
Tuesday, July 10, 2012
Posted by Bennett Ruda at 9:34 AM