While I realise that you and your Israel-bashing mates on HC aren't always interested in facts - especially when they run counter to your agenda....if you really do have some interest in the reality, you might find this legal argument of interest:Why Israeli settlements are not aviolation of international law
JANUARY 3, 2017, 3:28 AM 1
Robert StarkRobert Stark received aB.A. in Political Science and was Editor in Chief of the Lander CollegePolitical Science Journal, … [More]
Critics of Israel’s policy to allow its citizens to live inthe regions of Judea and Samaria have two separate arguments for why thesettlements are illegitimate. One is a legal argument, the other is political.In this article, I will explain why Israeli homes in the area are in fact legalunder international law. In my next installment, I will address the politicalargument.
Recently there was a big noise made over a U.N. SecurityCouncil resolution that declared Israeli homes, built in the region of Judeaand Samaria, a “flagrant violation ofinternational law.” The resolution does not break any new ground, as faras the international community is concerned, because President Jimmy Carterallowed the Security Council to pass a resolution that stated Israeli homesbuilt in Judea/Samaria have “no legal validity.”
Both of these resolutions, although they make a bold andstark statement about the legality of the so called “settlements”, are merelypolitical statements. As I explained at thebottom of a previous article, these resolutions are non-bindingunder international law. Furthermore, these resolutions are not consistent withobjective legal analysis of the subject by world experts on international law.
In order to find Israel’s settlements to be a violation ofinternational law, first, Israel must be considered an occupier of foreignterritory. Yet, Israel’s legal claim to the territory in question wasrecognized by the international community on several occasions. First, the landon both sides of the river Jordan were recognized as part of the JewishNational Home by the 1920 San Remo Conference. This was endorsed by theLeague of Nations (predecessor to the United Nations) in the 1922 League of Nations Mandate to Britain, andaffirmed by article 80 of the United Nations charter in1945. When Israel’s leaders declared sovereignty in all territory relinquishedby England on May 15, 1948 (including the territory that anti-Israel peoplecall the “West Bank”) it was recognized to be the State of Israel by both theGeneral Assembly and Security Council in November 1948.
Jordan invaded (along with four other Arab states) and conqueredthis specific territory in 1949, annexed it in 1950, and gave it a new name:“West Bank” (of the river Jordan). Only two countries in the entire worldrecognized Jordan’s annexation (England and Pakistan) and not a single Arabcountry recognized this annexation.
Furthermore, article 2 of the UNcharter forbidsthe acquisition of territory through war. Thus, Jordan’s acquisition andannexation of the territory was illegal under international law.
In 1967, Jordan again initiated war against Israel (alongwith two other Arab states) but Jordan was pushed out of the territory (back toJordan’s recognized boundaries on the east bank of the Jordan river) by Israel.This re-acquisition of the territory by Israel was legal because article 51 of the U.N.charter permitsa nation to defend itself from attack. It is understood that nationalself-defense often necessitates control of any territory from which the initialaggression was launched.
If the territory would have been recognized as within theborders of the State of Jordan by either Israel or the international communitybetween 1949 and 1967, then it would have meant Israel’s return to theterritory was an occupation, regardless of previous title. But Jordan’sannexation was not recognized by the international community, nor did theJordan-Israel ceasefire agreement represent acquiescence to new borders byeither side:
Noprovision of this Agreement shall in any way prejudice the rights, claims andpositions of either Party hereto in the ultimate peaceful settlement of thePalestine question, the provisions of this Agreement being dictated exclusivelyby military considerations.” GENERAL ARMISTICE AGREEMENT BETWEEN ISRAELAND JORDAN – APRIL 3, 1949.
Given the fact that Israel had legal title to the territorythat was recognized by the international community and Israel’s final controlof the territory was a result of self-defense rather than aggression, while Jordan’s controlof the territory was never recognized as legitimate by theinternational community, common sense shows that Israel merely won backterritory that legitimately belonged to it in the first place.
This is a strong legal argument for why Israel has superiortitle to the territory, in a legal chain that was never legitimately broken,therefore Israel can’t be an occupier on territory that belongs to it in thefirst place.
This position is shared by Judge Schwebel, former Presidentof the International Court of Justice, in his book on the subject “What Weightto Conquest? Aggression, Compliance, and Development” pg. 521-526.
For a fuller explanation on why Israel can’t be anoccupier, see my previous article on the subject. But, for the sake ofargument, let us play devil’s advocate and assume Israel had no legal title tothe territory in 1967. In that case, would Israel’s settlements be a violationof international law?
The answer is no, here is why:
The Fourth Geneva Convention provides theinternational law as relates to occupied territory, and is the basis of anylegal argument against Israel on the subject of Israelisettlements. Therefore, in order to make the conclusion that Israel’ssettlements are illegal under international law, one must be able to apply thisconvention to Israel’s presence in the area. And then, one must show thatIsrael is in violation of one of the provisions of the convention.
In order for a territory to be recognized as occupied bythe Fourth Geneva Convention, a territory must have changed hands in aconflict in which one country takes control of foreign territory. InIsrael’s case, the only other country that controlled the territory in questionwas Jordan. Yet, Jordan relinquished all claims to the territory in 1988 andrecognized the territory as part of Israel in a peace treaty signed in 1994.
Thus, even if Israel’s capture of the territory in 1967 isconsidered an occupation, the fact that Jordan later relinquished all itsclaims and then recognized the territory as part of the State of Israel meansany such occupation is long over.
But for argument’s sake let us play devil’s advocate andassume Israel is still an occupier to this day, as some might argue, despitethe lack of an international conflict. Then, are the settlements illegal?
The answer is still no, here is why:
The convention only applies to States that are a party tothe convention itself. Thus, either the occupier or the occupied must be asignatory to the convention in order for it to apply. Since the Arab residentsof the West bank are not residents of a state that is bound by the Convention,and Israel is not a signatory either, therefore the Fourth Geneva Conventiondoes not apply to this conflict. This position is shared by Professor JuliusStone, one of the 20th century’s leading authorities on international law, “Israel and Palestine, Assault on the Law of Nations” discourse 2, pg. 177.
This was also the position of a French Court of Appeals which stated:neither the Palestinian Authority nor Israel is a party to the Fourth GenevaConvention and therefore the convention does not apply to them.
But let us once again play devil’s advocate and put thistechnical, yet decisive, issue aside. Let us imagine the Fourth GenevaConvention applies despite the fact that neither Israel nor the PalestinianAuthority is a party to the convention. Then, are the settlements illegal?
In that case, the answer is still no, here is why:
Those who claim the settlements are illegal point toArticle 49 of the convention, which states that to be an illegal occupier theoccupying power must do one of two things:
1. Forciblytransfer the population under occupation to outside the occupation zone, eitherinside the controlling country or to another country.
2. Transferthe population of the occupier from its own country to the occupied zone.
No one among Israel’s critics is claiming that Israel isabsorbing the Arab-Palestinian population into Israel proper, nor is anyoneclaiming Israel is deporting entire populations from the territory to somewhereelse. So the first provision does not apply.
As for the second provision, it requires a wild stretch ofthe imagination to describe the voluntary choice made by free acting persons tomigrate to the area as “persons being deported or transferred by theirgovernment”. Especially when one considers the authoritative, and official, commentary to article 49 states thatthis provision was:
Intendedto prevent a practice adopted during the Second World War by certain Powers,which transferred portions of their own population to occupied territory forpolitical and racial reasons or in order, as they claimed, to colonize thoseterritories. Such transfers worsened the economic situation of the nativepopulation and endangered their separate existence as a race.”
There is simply no legitimate comparison between Israelicitizens’ vote, through their wallet and their feet, and the millions ofGermans and others who were actively required by their own government to movefrom their country into newly occupied zones elsewhere.
This position is shared by various international lawscholars such as Professor Eugene Rostow (former Under Secretary of State,former dean of Yale Law School, and author of Security Council Resolution 242)who wrote:
[T]heConvention prohibits many of the inhumane practices of the Nazis and the SovietUnion during and before the Second World War – the mass transfer of people intoand out of occupied territories for purposes of extermination, slave labor orcolonization, for example….The Jewish settlers in the West Bank are mostemphatically volunteers. They have not been “deported” or “transferred” to thearea by the Government of Israel, and their movement involves none of theatrocious purposes or harmful effects on the existing population it is the goalof the Geneva Convention to prevent.” American Journal ofInternational Law, Vol. 84, 1990, p. 719.
And Professor Julius Stone, one of the 20th century’sleading international law experts, who wrote:
Ironywould…be pushed to the absurdity of claiming that Article 49(6), designed toprevent repetition of Nazi-type genocidal policies of rendering Nazimetropolitan territories judenrein, has now come to meanthat…the West Bank…must be made judenrein and must be so maintained,if necessary by the use of force by the government of Israel against its owninhabitants. Common sense as well as correct historical and functional contextexcludes so tyrannical a reading of Article 49(6).” “Israel and Palestine,Assault on the Law of Nations” discourse 2, pg. 179-181.
But, let us play devil’s advocate, and assume the Israeligovernment’s allowance of its citizens to live and build within its borders isa violation of article 49. Then, are the settlements illegal underinternational law?
The answer is still no, here is why:
Any question of legal validity under international lawshould be resolved by the fact the Palestinian-Authority, under Yasser Arafat,signed the Oslo Accords with Israel. This was aninternationally recognized agreement to divide jurisdiction of the territorybetween Israel and the newly created Palestinian Authority. Under thisagreement, Israelis have full jurisdiction to live and build on the designated60% of the territory. Therefore, any building in this territory is completelylegitimate under international law through the Oslo Agreement.
So there you have it, in all the possible stages of thelegal argument:
Israel can’t be an occupier because it likely has superiortitle to the territory in the first place. Even if it had no title to theterritory, the Fourth Geneva Convention can’t apply here. And even if it couldapply here, Israel would be a legal occupier rather than an illegal one, sinceIsrael hasn’t violated the provisions of the Fourth Geneva Convention (makingthe settlements legal rather than illegal). Lastly, even if Israel’ssettlements were a violation of article 49 of the Fourth Geneva Convention, theOslo Accords have given both Israel and the Palestinian Authority the right tolive and build in their allotted jurisdictions.
