Reply to comment:"What about international law?"
Mark B. KaplanMark is the director of the Office for Israeli Constitutional Law (OFICL),...
I wanted to respond to this comment on the Israelity! blog, but I got carried away. So I am posting this as a separate posting. I will add on to this article as necessary based on the questions and comments I receive, rather than post my responses in the comment section. Please feel free to use any of this material.
Here is the comment I received:
6.What about international law?
Did you ever stop to think that settlements built in violation of international law should not be allowed to stand? What gives you the right to steal Palestinian land for your settlements?
Michael Neal, Geneva, Switz. (6/6/12)
Here’s my response. I’m sorry it’s so long, but that’s how propaganda succeeds… Someone makes a short comment that’s a blatant lie, the damage is done, and then you must spend a lot of time undoing the damage by presenting facts. Difficult to do when the whole world is ADD!
Michael, when was this land Palestinian (Arab) land? How and when did it become Palestinian Arab land? By what act of international law was legal title transferred from the Jewish People to these Palestinian Arabs?
Oh, and one more question just for laughs: If Palestine/Land of Israel rightfully belongs to the Arabs, why does the United Nations (UNWRA) have special criteria for defining an Arab refugee of the Israel Arab War as: "people whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict."
Funny how the definition of someone with ancient historic rights "from time immemorial" comes down to a 23-month period in 1946-1948!
If you are concerned about International Law, Judea and Samaria (aka the West Bank) belongs to the "Jewish National Home in Palestine" which under definition of international law is what we call today the State of Israel.
The only country of Palestine that ever existed was a Mandated country of Palestine from April 1920 to May 1948. This country called Palestine was created as a Jewish country with protection of religious and civil rights for the non-Jewish inhabitants.
What International law are you citing?
Palestine is historically a general territory that was under foreign occupation since the time of the Romans. The Romans forcibly exiled the Jews who never gave up claim to the land. It’s ironic that the Romans did this, because in modern international law, this would be considered a war crime, crime against humanity, and would be prosecutable at the International Criminal court, as defined in the Rome Statutes!
Throughout history, whenever Jews were oppressed in host countries, Jews have always tried to return home to the Land of Israel. However, the land had been mostly uninhabitable for the past two millennia. The land comprised swamps filled with malaria infested mosquitoes, desert, and rocky terrain.
The total population had dropped from around 2-million mostly Jewish inhabitants at the time of the Roman conquest to around 270-thousand by the period of the rise of Islam. That number was pretty constant until the 1800s. During all of this history there was a Jewish presence in the Land of Israel. Conditions started to improve in the 19th century and Zionists (and pre-Zionist) Jews began returning to the land in groups to build the land and an economy. Arabs came to work for the Jews who were paying a living wage—something that did not exist previously. Also, better healthcare also contributed to the increase in population.
After World War I, the victorious Principal Allied Powers, who defeated the Ottoman-Turkish Empire, were now the owners of the Middle East. The Ottoman-Turkish Empire had been the Sovereign rulers of the Middle East, including the territory of Palestine, for almost 500 years.
The victorious allies made a bold decision not to keep the territories they captured for their own benefit, but rather set up independent countries, ruled by their native/indigenous populations. In 1919 at the Paris Peace Conference, it was agreed that Palestine would be created as a reconstitution of the Jewish commonwealth. Support for this agreement was signed by Emir Feisal I who represented the Arabs at the Peace conference. An Arab country in Palestine was not considered, because the territory was not considered Arab.
It was also understood that if all these lands were turned over to their indigenous populations, there would be chaos and civil war. As a result, a “big brother” system for setting up countries was adopted. This was called the Mandates system. The Mandates system was incorporated as International law as Article 22 of the Covenant of the League of Nations (later reaffirmed as law under Article 80 of the U.N. Charter).
In April 1920 at the San Remo Peace Conference, three Middle East Mandates were adopted that created four countries: The Mandate for Syria, which created Syria and Lebanon as two separate countries, The Mandate for Mesopotamia which created Iraq, and the Mandate for Palestine, which created a Jewish country that would eventually change its name to the State of Israel.
These four countries were all created under international law as Mandated countries on April 24, 1920, even though the boundaries that had been discussed in detail not been officially mapped.
The boundaries were officially mapped in accordance with the San Remo Resolution and the three Mandates in December 1920 as the Franco-British Boundary Convention. According to those borders, all Judea and Samaria, all Jerusalem, all the Gaza Strip, and well yes, all of what would later be called Trans-Jordan were part of the Jewish State. Each of the Mandates contained an Article prohibiting the ceding/partitioning of territory (see Article 5 of the Mandate for Palestine).
Therefore, under international law, these territories belong to the Jewish State. The right to these territories is based on the recognition of the to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” In other words, the legal rights of the Jewish People to all Palestine was not a modern invention but based on the historical national rights of the Jewish People.
In November 1947, the U.N. General Assembly passed a resolution recommending the partition of Palestine into two separate states. This partition plan violated the Mandate for Palestine as well as Article 80 of the U.N. charter. The International Court of Justice at The Hague ruled in the case regarding South Africa’s attempt to annex Namibia that the Mandates are law, may not be violated, and the U.N. General Assembly may only make changes to Mandates as authorized in the Mandate documents (the General Assembly was given the authority to act in the capacity of the League of Nations Permanent Mandates Commission).
Furthermore, since the partition plan was a General Assembly resolution, it is not international law. The General Assembly does not make laws, create countries, or alter the Mandates. Only the Security Council can make legally binding resolutions.
When the British abandoned the Mandate for Palestine, the newly independent Jewish State was attacked by its Arab neighbors. When the dust settled, Trans Jordan had occupied half of Jerusalem as well as Judea and Samaria, and Egypt occupied the Gaza Strip.
An armistice agreement with Trans-Jordan was signed in 1949. According to this agreement (article 2), the armistice agreement did not affect any legal claims of the parties, therefore the cease fire lines were not considered a border. It specifically is stated that the agreement was strictly out of military consideration. That armistice line is what is referred to as the Green line or the pre-1967 borders.
Once again, the only legal boundaries that determine the borders of Israel are those of the 1920 Franco-British Boundary Convention.
In answer to the question of whether the building of settlements is illegal under Article 49 of the 4th Geneva Convention (and whether the convention really prohibits the population of an occupier to build homes in occupied territory) is irrelevant.
Because you will have one heck of a tough time establishing that Israel is occupying anyone’s territory other than its own legally sovereign territory!
Funny, no one ever asks, “How did you establish that Israel is occupying Judea/Samaria (W. Bank)?
Occupation is defined by the 1907 Hague Regulations as :
MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE
(Israelity! bold added to stress the term “territory of” This indicates that the territory must be the legal territory of the People/Nation being occupied. If that is not clear, please continue reading.)
Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.
Art. 43. The authority of the legitimate power (Israelity! bold face added ) having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
So, if the first heading did not make it clear, certainly article 43 makes it quite clear when it states, if the power being replaced in the “occupied” territory was not the legitimate authority, then there is no occupation.
And, we have established that under international law, the territory belongs to Israel.
How do you occupy your own territory?
Now, when you ask, “What about international law,” what else do you want to know?
Go for it! Bring me to the International Court of Justice or the International Criminal Court.
I dare anyone to drag me there on charges of violating the 1949 4th Geneva Convention or the Rome Statutes…
I am not a lawyer, but hell, I know darn well what authentic International Law says about my legal rights to my homeland. I won’t be conned by Arab/anti-Israel propagandists.
Why do you think the tours and presentations being given to world leaders by people like David Ha’ivri and Gershon Mesika is so effective? Because when facts are presented, the lies of the Arab propagandists disintegrate.
Why do you think my old friend Dr. Saeb Erekat (Palestinian Authority Chief Negotiator) can call Danny Ayalon a liar in the media, but refuse to debate him face to face in a public forum? Ayalon is right. Erekat is good at calling people names and attacking little old ladies when they have their backs turned, but he turns chicken when someone who knows what he is talking about is tough enough to stand up to him,
The problem is that Israel’s Government is so busy walking on egg shells, that opportunists (oops, I meant to write “leaders” not “opportunists”) like Netanyahu who already know everything I just wrote about International Law and occupation, and they used to say everything I just wrote. We have all heard Netanyahu say on CNN, “It’s disputed territory; not occupied territory. Suddenly, when he becomes Prime Minister, he is too timid and weak to defend Israel when certain family members, like our beloved Uncle Sam might not approve.
Israel needs a little perspective: Americans will stand by Israel. Israel’s real friends will stand by Israel. Remember, Obama is just a passing fad. He will soon go disappear from the scene. However, our legal right to our inheritance is eternal. The Land of Israel is eternal.
The one good thing I see in the Government’s decision in dealing with the Ulpana neighborhood is that a message has been sent to the treasonous folks at “Peace Now.” The Kapo now understands that if you try to strike at the Jewish National Home by abusing the court system, we will build more. Certainly I do not approve of tearing down the buildings in Beit El , but it is a small consolation, and boy is Peace Now upset!
June 8, 2012
2.Israel ignores security Council resolutions
Israel has ignored UN resolutions, like Res 242, which is asecurity council resolution, and so they are ignoring international law. Res 242 requires Israel to withdraw from the West Bank. It's nice to be able to choose what international law is most convenient.
Corey, Des Moines, IA (7/6/12)
To understand UN Security Council Resolution 242 as far as international law, is a whole long blog in itself.
Resolution 242 does not require Israel to unilaterally withdraw to the pre-1967 Armistice line. The basic requirement of Resolution 242 is for the countries that were involved in the conflict to sit down and negotiate safe secure borders and end hostilities.
The fact that negotiating a just and lasting peace is the basis of the resolution means that even though the resolution is a Security Council resolution, it is not a legally enforceable resolution under international law. You cannot force parties to negotiate a peaceful settlement. Resolution 242 is not the same type of resolution as the one that authorized the use of force against Iraq to force Sadaam Hussein to end Iraq's occupation of Kuwait. The resolution regarding Iraq was under Chapter 7 of the UN charter that cites a threat to the peace. In such a case, force or sanctions may be used to achieve compliance.
Here are some of the main points of Resolution 242:
* Inadmissibility of the acquisition of territory by war.
Israel did not acquire Judea, Samaria, Jerusalem, and the Gaza Strip through an act of war. These territories were already legally sovereign Israeli territory as per the 1920 Franco-British Boundary Convention which were the borders for the Mandate for Palestine. The Golan Heights was illegally removed from Jewish Palestine in two separate stages by the French and British. According to all agreements of the Principal Allied Powers, the entire Golan should have been part of Mandated Palestine.
Even with the Golan having been illegally removed from Mandated Palestine, since Syria used the Golan as a launching ground for hostilities (as did Egypt and Jordan from territories they lost in 1967), Israel had the inalienable right of self defense, including the right to retain any territory that was used in by the enemy as a launching ground for their attacks. It is not logical to require a country to return control of territory captured in a defensive war, otherwise there would be no deterrent for war. The Kellogg Briand Pact (1928) only outlawed a policy of aggression, not a policy of self defense. Self defense is not an act of aggression.
* Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.
Israel and her neighbors involved in the 1967 War have ended their belligerency (other than Syria), and respect Israel's territorial integrity and vice versa. Israel gave the Sinai to Egypt, Egypt ended their occupation of Gaza. Jordan gave up its claim to Judea, Samaria and Jerusalem, and Israel allowed Jordan to keep farm land owned by Jews east of the Jordan River, with an agreement to allow the Israeli farmers access to the land and protection. Israel withdrew from some areas of the Golan and turned them over to Syria, and UN peace keeping troops have maintained the peace on the border.
Israel and her neighbors have already fulfilled the requirements of Resolution 242, with the exception of on the Syrian front, which has only been partially fulfilled. There was no Palestinian Arab country involved in the 1967 war, the Arabs who are calling themselves Palestinians today are not an entity involved in Resolution 242.
* Withdrawal of Israeli armed forces from territories occupied in the recent conflict.
The withdrawal of armed forces from territories reconstituted to Israel in 1967 can only be possible with an end of the violence perpetrated by the Arab population in these territories.
In Jerusalem, armed forces have been removed, and throughout Judea and Samaria, armed forces have been removed in many areas.
According to the drafters of the resolution, there was no intent to require Israel to withdraw from "all” the territory or even "the" territory. It was purposely left vague in order to be open for negotiation.
The British Foreign Secretary during the period of the 1967 war, George Brown, said in January 1970, "I formulated the Security Council resolution. Before we submitted it to the Council we showed it to the Arab leaders. The proposal said Israel will withdraw from territories that were occupied and not from “the” territory, which means that Israel will not withdraw from all the territories."
British Ambassador to the UN Lord Caradon stated in 1974 (Beirut Daily Star, on June 12, 1974), "It would have been wrong to demand that Israel return to its positions of June 4, 1967 because those positions were undesirable and artificial. After all, they were just the places where the soldiers of each side happened to be on the day the fighting stopped in 1948. They were just armistice lines. That is why we did not demand that the Israelis return to them."
* Guaranteeing freedom of navigation through international waterways in the area.
* A just settlement of the refugee problem.
* Guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;
* Request that the Secretary General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned.
Obviously the refugee issue is yet to be settled, but most of Resolution 242 has been fulfilled.
The Arabs calling themselves Palestinians are not in the equation, they were not a state involved in the war. Jordan, Egypt, and Syria were.
Resolution 242 cannot require Israel to give up any territory that was part of the Jewish National Home under the Mandate for Palestine. That would violate the legal rights of the Jewish People under international law. Any Security Council resolution that violates international law is certainly unenforceable.
For more information read Howard Grief's Essay: ACPR Policy Paper No. 173,SECURITY COUNCIL RESOLUTION 242:A VIOLATION OF LAW AND A PATHWAY TO DISASTER
June 10, 2012
7:35 AM Jersualem time
Another reply to a comment about the vague term "Jewish National Home" (This will be the last one. This post is already almost a book!)
Here's the comment:
The information about San Remo probably makes your point. However, the British under Balfour and the League of Nations mandate only promised respect and protection of/for a 'Jewish National Home.' That is not a state, and could imply a binational state, by default. The more relevant point, I think, is that once the British tore the new state of Jordan away from the territory of the Mandate, they violate all agreements and were not sanctioned in any way.
Larry, Margaliot (8/6/12)
Here's my reply:
The Mandate for Palestine was a Mandate under the Mandates System. Mandates served only one purpose: To safely set up countries that had been previously under the rule of the German or Ottoman Turkish Empires.
The 1917 Balfour Declaration was a statement of British foreign policy, supporting the establishment of a Jewish country in Palestine. The wording seems a little ambiguous. This is not the fault of the British, but rather of the Zionists.
"His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."
The Balfour Declaration merely stated that the British would do their best to help create this Jewish State.
The vague term that has given much fuel for the anti-Zionist fire is the statement, “the establishment in Palestine of a national home for the Jewish people.” What is meant by a national home, a country or a country club?
As I stated above, the ambiguity of the term “national home” was not the fault of the British. Lord Balfour had asked Chaim Weitzmann to draft the resolution, and Weitzmann gave the task to a team headed by Zionist writer Nachum Sokolow.
Sokolow had attended the 1st Zionist Congress (in 1897) in Basel, Switzerland. At that time, the Zionists understood the delicate situation in dealing with the Ottoman-Turkish leaders. The Ottoman Empire was falling apart, and the Ottomans would not be very receptive to losing Palestine. At that time not enough Jews had yet returned to Eretz Yisrael to set up the country.
What the Zionist needed at the time was permission to buy land and build settlements. So the declaration at Basel delicately walked around the issue of a country and merely called for a home for the Jews secured by public law.
There is no doubt what Thodore Herzzl meant in the declaration. Herzl wrote in his journal that night: At Basel I founded the Jewish state. If I were to say this today, I would be greeted by universal laughter. In five years, perhaps, and certainly in 50, everyone will see it.
When Sokolow was asked to draft the Balfour declaration, he was also afraid the British would not agree to a Jewish “country” or “state.” However, that was precisely what the British did agree to. On October 31, 1917 in the British War Room, the Jewish country being proposed was discussed. There was no doubt that this home was a country.
I am currently transcribing the minutes from the San Remo Conference to upload to the Office for Israeli Constitutional Law web site. At San Remo the word state was used to describe this “Jewish National Home,” as in this statement by the French:
Was this new projected State, however, to have an entirely different administration from other States?
There were deliberations at length about what form of government this Jewish National Home would have and what the rights of the non-Jewish inhabitants would include. This would not make sense if the “National Home” in question was only a cultural center.
Furthermore, there would be no need to establish a Mandate as part of the Smuts Mandate System to establish a cultural center. The suggestion is almost laughable.
The French did try to later claim that a national home was not a county, and the British put the French in their place. Then Churchill later claimed that the British never intended to create a Jewish country. To bad Churchill had not been at San Remo or in the Cabinet meeting on October 31, 1917.
As to your suggestion that the Mandate or Balfour declaration might imply a “bi-national state” the Jews are the only named recipient in the Mandate for Palestine other than the protection of the civil and religious rights of the non-Jewish inhabitants. This was also discussed at length at San Remo. It was suggested that the protection of civil rights meant the right to vote. Nowhere was there any discussion about an Arab state in Palestine.
If the term, “in Palestine” did not mean all Palestine, then in which part of Palestine should non-Jewish rights be protected? If the Mandate did not create a Jewish country, why would the civil and religious rights of non-Jews need protecting at all?
When you look at the facts, the anti-Zionist propagandists really have nothing with which to back their claims
As far as Trans-Jordan being illegally removed from the Mandate, what would later be called Trans-Jordan was protected as Jewish territory under Art. 5, 6, 15, and 25 of the Mandate.