[Part one of this article can be read at http://www.israelnationalnews.com/article.php3?id=4925.]
It is very worrying that the Israeli legal system currently ignores fundamental historical-legal facts:
1) On 24.4.1920, the nations of the world decided, at the San Remo Conference, to give the Palestine Mandate to the United Kingdom 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, Transjordan (Eastern Palestine) and the Golan Heights. Jewish national rights asserted in the Mandate also included the forbiddance of the transfer of the area out of Jewish control, along with the emphasis that Jews only were given political rights in Palestine; the other inhabitants of Palestine were given only "civil and religious rights". Later, in September 1922, in Article 25, the League of Nations, at the request of the British, allowed the UK 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 preserved 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 Judea, Samaria and Gaza, 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 Judea, Samaria and Gaza.
As explained, for example, in Julius Stone's book mentioned above, in the sub-chapter entitled "Continuing Obligations of the Mandate", 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 Southwest Africa (Namibia). In that case, South Africa was analogous to the United Kingdom acting as a trustee and Germany was analogous to Turkey, which lost the land. Later, South Africa tried to claim that there was no longer a Mandate because of the dissolution of the League. But the International Court of Justice in 1950 did not agree; it 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, 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.
3) A major central goal of the erudite book by Julius Stone mentioned above is to show that the stream of UN resolutions about Palestine does not cancel these fundamental rights of the Palestine "sacred trust of civilisation", as it was called. For example, the most basic resolution, 242, does not require Israel to retreat from all the territories, but recommend a retreat to "secure and recognized borders" in the context of total peace. A report to president Johnson in 1968 by the commander-in-chief of the American army said that "secure and recognized borders" mean retaining Judea, Samaria, Gaza and the Golan. In any case, Israel already retreated from more than 90% of the territories captured in 1967 when she retreated from the Sinai. 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.
Furthermore, one should note that all UN 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) The ruling by the state legal representatives that Israel's presence in the 'territories' is based on 'belligerent occupation' is particularly worrying, because recently, Attorney General Menachem Mazuz and his deputy Dr. Shavit Matias recommended to Sharon - who, it was reported, accepted the recommendation - that Israel adopts de jure part of the Fourth Geneva Convention. Article 49(6) of that agreement reads as follows: "The occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." This position, traditionally adopted by bodies hostile to Israel, was rejected by all previous Israeli legal systems. This part of the Fourth Geneva Convention is multiply irrelevant to Jewish settlement in Judea, Samaria and Gaza, as explained by Julius Stone in his aforementioned book: "A demand that this territory [Judea, Samaria and Gaza] be kept Judenrein would be a gross travesty of this [Article 49(6)] legal position, turning international law on its head." Yet, this legal travesty was suggested by the present attorney general and his team. Israel's current Supreme Court also incorrectly invoked the Fourth Geneva Convention in relation to the security fence (for a discussion of that, see "Is the Legal System Acting Illegally?").
What is the source of such an accumulation of anti-Jewish positions in the present Israeli legal system, in clear opposition to Israel's previous legal counsel and to the positions of the greatest experts of international law? Is it due to pure ignorance or to something else? Such an accumulation of incorrect applications of international law discredits the Israeli legal system and diminishes its authority.
6) There are many illegalities in Sharon's uprooting program, including: 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 are enumerated in the article by Howard Grief, "The Transfer of Jews Under Prime Minister Sharon's Unilateral Disengagement Plan", including violation of the law of return and the transfer of national land, which could be considered treason.
But I would like to stress here the violation of the law of trusts according to which the complete set of beneficiaries should benefit from any given trust. Since 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, as well as future generations of Jews. The contemplated uprooting will deprive other beneficiaries of the Palestine trust, such as future Jewish generations, of their rights. 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 of 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 Western Palestine, at least, that 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.)
The army, the police and all those called upon to carry out the uprooting should know that they are being called to carry out a multiply illegal activity. They should draw their own conclusions whether to obey such orders.
[Part 2 of 2]
It is very worrying that the Israeli legal system currently ignores fundamental historical-legal facts:
1) On 24.4.1920, the nations of the world decided, at the San Remo Conference, to give the Palestine Mandate to the United Kingdom 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, Transjordan (Eastern Palestine) and the Golan Heights. Jewish national rights asserted in the Mandate also included the forbiddance of the transfer of the area out of Jewish control, along with the emphasis that Jews only were given political rights in Palestine; the other inhabitants of Palestine were given only "civil and religious rights". Later, in September 1922, in Article 25, the League of Nations, at the request of the British, allowed the UK 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 preserved 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 Judea, Samaria and Gaza, 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 Judea, Samaria and Gaza.
As explained, for example, in Julius Stone's book mentioned above, in the sub-chapter entitled "Continuing Obligations of the Mandate", 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 Southwest Africa (Namibia). In that case, South Africa was analogous to the United Kingdom acting as a trustee and Germany was analogous to Turkey, which lost the land. Later, South Africa tried to claim that there was no longer a Mandate because of the dissolution of the League. But the International Court of Justice in 1950 did not agree; it 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, 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.
3) A major central goal of the erudite book by Julius Stone mentioned above is to show that the stream of UN resolutions about Palestine does not cancel these fundamental rights of the Palestine "sacred trust of civilisation", as it was called. For example, the most basic resolution, 242, does not require Israel to retreat from all the territories, but recommend a retreat to "secure and recognized borders" in the context of total peace. A report to president Johnson in 1968 by the commander-in-chief of the American army said that "secure and recognized borders" mean retaining Judea, Samaria, Gaza and the Golan. In any case, Israel already retreated from more than 90% of the territories captured in 1967 when she retreated from the Sinai. 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.
Furthermore, one should note that all UN 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) The ruling by the state legal representatives that Israel's presence in the 'territories' is based on 'belligerent occupation' is particularly worrying, because recently, Attorney General Menachem Mazuz and his deputy Dr. Shavit Matias recommended to Sharon - who, it was reported, accepted the recommendation - that Israel adopts de jure part of the Fourth Geneva Convention. Article 49(6) of that agreement reads as follows: "The occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." This position, traditionally adopted by bodies hostile to Israel, was rejected by all previous Israeli legal systems. This part of the Fourth Geneva Convention is multiply irrelevant to Jewish settlement in Judea, Samaria and Gaza, as explained by Julius Stone in his aforementioned book: "A demand that this territory [Judea, Samaria and Gaza] be kept Judenrein would be a gross travesty of this [Article 49(6)] legal position, turning international law on its head." Yet, this legal travesty was suggested by the present attorney general and his team. Israel's current Supreme Court also incorrectly invoked the Fourth Geneva Convention in relation to the security fence (for a discussion of that, see "Is the Legal System Acting Illegally?").
What is the source of such an accumulation of anti-Jewish positions in the present Israeli legal system, in clear opposition to Israel's previous legal counsel and to the positions of the greatest experts of international law? Is it due to pure ignorance or to something else? Such an accumulation of incorrect applications of international law discredits the Israeli legal system and diminishes its authority.
6) There are many illegalities in Sharon's uprooting program, including: 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 are enumerated in the article by Howard Grief, "The Transfer of Jews Under Prime Minister Sharon's Unilateral Disengagement Plan", including violation of the law of return and the transfer of national land, which could be considered treason.
But I would like to stress here the violation of the law of trusts according to which the complete set of beneficiaries should benefit from any given trust. Since 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, as well as future generations of Jews. The contemplated uprooting will deprive other beneficiaries of the Palestine trust, such as future Jewish generations, of their rights. 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 of 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 Western Palestine, at least, that 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.)
The army, the police and all those called upon to carry out the uprooting should know that they are being called to carry out a multiply illegal activity. They should draw their own conclusions whether to obey such orders.
[Part 2 of 2]