It was reported Tuesday in the press that the Israeli state has rejected settlers' appeals 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 in "belligerent occupation". Yet, this is manifestly incorrect.
After 1967, Israel had to decide how to proceed with specific and practical questions. For example, on what humanitarian basis it would deal with the Palestinian Arabs in Judea, Samaria and Gaza. As a gesture of a good will, it applied conditions associated with belligerent occupation and the Geneva Convention. But all along, Israel itself, including the justices of Israel's own Supreme Court, as well as all experts of international law, were stressing again and again that Jewish national rights in Western Palestine were not based on "belligerent occupation", but on other principles of international law. The position now adopted by the Israeli judicial system, while facilitating the proposed uprooting in that it provides a legal umbrella for it, does not correspond to objective international law, nor to the positions of all earlier Israeli judicial decisions. The settlers have the right to expect the current judicial system to abide by the position of earlier (e.g., from when they decided "to settle") Israeli judicial systems and, most importantly, objective international law.
One way for the present judicial system to see how much in breach they are of objective international law and previous legal positions of Israel is to read Professor Julius Stone's Israel and Palestine (The Johns Hopkins University Press, 1981; in particular, "Discourses 1 and 2" there). The reader will see there how many times the author repeats the idea that Israel decided to act in some cases "as if", "de facto", its presence in Yesha is based on "belligerent occupation". After all, they had to find some frame of reference on which to base Israel's humanitarian treatment of Arabs and to handle other problems that arose. It was always emphasized by most experts that Israel is entitled to apply its sovereignty in any part of Western Palestine. For example, in pages 168-169, Stone makes the point that Jewish rights are not based on "belligerent occupation", but on "formidable bases of title", some which he proceeds to enumerate:
"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 without jurisdiction to address them "in the manner in which the case was presented."
In fact, even if "formidable bases of title" did not exist, it is customary that territory gained in self-defense is not returned. For example, this is why so many countries incorporated German territory into their national territories, even from the First World War.
[Part 1 of 2]
After 1967, Israel had to decide how to proceed with specific and practical questions. For example, on what humanitarian basis it would deal with the Palestinian Arabs in Judea, Samaria and Gaza. As a gesture of a good will, it applied conditions associated with belligerent occupation and the Geneva Convention. But all along, Israel itself, including the justices of Israel's own Supreme Court, as well as all experts of international law, were stressing again and again that Jewish national rights in Western Palestine were not based on "belligerent occupation", but on other principles of international law. The position now adopted by the Israeli judicial system, while facilitating the proposed uprooting in that it provides a legal umbrella for it, does not correspond to objective international law, nor to the positions of all earlier Israeli judicial decisions. The settlers have the right to expect the current judicial system to abide by the position of earlier (e.g., from when they decided "to settle") Israeli judicial systems and, most importantly, objective international law.
One way for the present judicial system to see how much in breach they are of objective international law and previous legal positions of Israel is to read Professor Julius Stone's Israel and Palestine (The Johns Hopkins University Press, 1981; in particular, "Discourses 1 and 2" there). The reader will see there how many times the author repeats the idea that Israel decided to act in some cases "as if", "de facto", its presence in Yesha is based on "belligerent occupation". After all, they had to find some frame of reference on which to base Israel's humanitarian treatment of Arabs and to handle other problems that arose. It was always emphasized by most experts that Israel is entitled to apply its sovereignty in any part of Western Palestine. For example, in pages 168-169, Stone makes the point that Jewish rights are not based on "belligerent occupation", but on "formidable bases of title", some which he proceeds to enumerate:
"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 without jurisdiction to address them "in the manner in which the case was presented."
In fact, even if "formidable bases of title" did not exist, it is customary that territory gained in self-defense is not returned. For example, this is why so many countries incorporated German territory into their national territories, even from the First World War.
[Part 1 of 2]