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THINK-ISRAEL |
Having considered the approaches presented before us, we think a reasonable interpretation of the standard term of "occupation", with all the obligations arising from it, in the provisions of international law is intended to apply for short periods of occupation of a territory of a sovereign state until the end of the conflict between the parties and the return of the land or any other negotiated agreement regarding it. But the Israeli presence in Judea and Samaria is significantly different: the possession of the territory continues for many decades, and no one can predict its end, if at all; the territory was conquered from a state (the Kingdom of Jordan) whose sovereignty over the territory has never been firmly legalized, and in the meantime it even renounced its claim of sovereignty; the State of Israel claims sovereign rights to the territory.
As for Article 49 of the Geneva Convention, many have interpreted it, but it seems the dominant view is that the article indeed was meant to resolve the harsh reality imposed by some states during the Second World War, when they expelled and forcibly transferred some of their inhabitants to the territories they had occupied, a process which was accompanied by a substantial worsening of the condition of the occupied population (see HCJ ruling 785/87 Abed Alaziz Alafu and others against Commander of IDF Forces in the Gaza Strip region and the article by Alan Baker — 'Distorting the Geneva Convention and Oslo Accords', January 2011[1])
This interpretation is supported by a number of sources: the authoritative interpretation of the International Committee of the Red Cross (ICRC), responsible for implementing the Fourth Geneva Convention[2], which states regarding the purpose of article 49 of the Convention:
"It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race."
Lawyers Prof. Eugene Rostow, Dean of Yale Law School in the US, and Prof. Julius Stone confirmed that Article 49 is intended to prohibit the same inhuman acts committed by the Nazis, i.e. a massive transfer of people into the occupied territories for the purpose of extermination, slavery or colonization[3][4]:
"[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War - the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example....The Jewish settlers in the West Bank are most emphatically volunteers. They have not been "deported" or "transferred" to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent."(Rostow)
"Irony would...be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that...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 own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.)" (Julius Stone)
6. We do not believe that one can draw an analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of them being "deported" or "transferred" but because of their world view - to settle the Land of Israel. We did not ignore the view of those who think that one should interpret the Fourth Geneva Convention as also prohibiting the occupying state to encourage or support the transfer of parts of its population to the occupied territory, even if it did not initiate it[5]. But even if this interpretation is correct, we would not change our conclusion that no analogy should be drawn between Article 49 of the Fourth Geneva Convention and Jewish settlement in Judea and Samaria, in light of the status of the territory under international law, and on that matter we will open with a brief historical overview.
7. On 2 November 1917 Lord James Balfour, the British foreign minister, issued a declaration that "His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people", the document which was addressed to Lord Rothschild read:
"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."[6]
In this declaration Britain recognized the Jewish people's right to the Land of Israel, and even expressed its willingness to advance a process that will eventually lead to the establishment of a national home for them in this part of the world. This declaration appeared, in a different version, in the declaration of the San Remo peace conference in Italy which laid the grounds for the Mandate for Palestine which acknowledged the Jewish people's historic connection to Palestine (see Preamble):
"The Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, 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...
Recognition had thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country."[7]
It should be emphasized here that in the Mandate (as well as in the Balfour Declaration) only the "civil and religious" rights of the inhabitants of Palestine are mentioned as subject to protection, but there is no mention of the national rights of the Arab people. And concerning the practical implementation of this declaration, article 2 of the Mandate says[8]:
"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self -governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion."
And in article 6 of the Mandate it says:
"The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes."
In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus was decided, as a norm anchored in international law, the Jewish people's right to settle in the Land of Israel, their historic homeland, and to establish their state there.
To complete the picture, we will add that with the establishment of the United Nations in 1945, established in article 80 of its charter [is] the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents.
"Except as may be agreed upon in individual trusteeship agreements...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties." ( Article 80, paragraph 1, UN Charter)
8. In November 1947 the UN General Assembly adopted the recommendation of the committee it had established to divide the Land of Israel west of the Jordan river into two states: one Arab and one Jewish[9]. But the plan was never implemented, and therefore was not binding under international law, since the Arab states rejected it and started a war to prevent its implementation and the establishment of a Jewish state. The outcome of the war set the political reality from now on: the Jewish state was established within the lines drawn after the war. However, an Arab state was not established, and the territories which had been conquered by Egypt and Jordan (the Gaza Strip, Judea and Samaria) were ruled by those countries. Later, the Arab states, which did not recognize the consequences of the war, demanded the armistice agreement include a statement saying that the cease-fire line should not be construed in any way as a political or territorial border[10]. Despite that, in April 1950, Jordan annexed the area of Judea & Samaria[11], unlike Egypt, which has never claimed sovereignty over the Gaza Strip. However, Jordan's annexation was not accepted on any legal basis, and most Arab countries opposed it, until 1988 when Jordan renounced its claim to the territory (on this issue see chief justice M. Landau's comments in HCJ ruling 61/80 69/80 Haetzni against the State of Israel; and HCJ ruling 69/81 493 Abu Aita against Commander of Judea & Samaria and others).
Thus the original legal status of the territory was restored, namely, a territory designated as a national home for the Jewish people, who had a "right of possession" to it during Jordanian rule while they were absent from the territory for several years due to a war imposed on them, and have now returned to it.
9. Alongside the international commitment to govern the territory and ensure the rights of the local population and public order, Israel therefore also had the full right to claim sovereignty over these territories, and all Israeli governments believed so, but they chose not to annex them and take a pragmatic approach in order to allow for peace negotiations with representatives of the Palestinian people and the Arab states. Israel therefore did not see itself as an occupying power in the classical sense of the word, and so never saw itself committed to the Fourth Geneva Convention in relation to Judea, Samaria and Gaza. It should be added here, that the Israeli government did indeed ratify the Convention in 1951, but since it was not adopted by the Knesset (on this issue see ruling 131/76 Kamiar against the State of Israel; and HCJ ruling 393/82 Jamat Iscaan against the Commander of IDF forces in Judea & Samaria) it merely issued a statement saying it will voluntarily implement the humanitarian provisions of the Convention (HCJ rulings 337/71 The Christian Association for Holy Places against the Minister of Defence; The Jerusalem District Electricity Company Ltd against the Minister of Defence & others; 698/80 Qawasma and others against the Minister of Defence and others; 1661/05 1661/05 Hof Azza Regional Council and others against Knesset Israel and others) . As a result, Israel implemented a policy that allows Israelis to live voluntarily in the territory in accordance with rules set by the Israeli government and supervised by the Israeli legal system, while their continued presence is subject to the outcome of the negotiation process.
In light of the aforesaid, we have no doubt that from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal, and therefore we can proceed to discussing this question from the perspective of domestic law.
Footnotes
[1] http://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/
[2] ICRC Commentary to the Fourth Geneva Convention, edited by Jean S. Pictet, [1958], p.3-9 http://www.icrc.org/ihl.nsf/COM/380-600056?OpenDocument
[3] American Journal of International Law, Vol 84, 1990, p. 719
[4] Phillips, "The Illegal Settlements Myth", Commentary, 2010 http://www.commentarymagazine.com/article/the-illegal-settlements-myth/
[5] On this issue see [note 13 in] Alan Baker's article mentioned above in note 5, [article here] on the subject of the addition of the words "directly or indirectly" in clause 8 of the constitution of the International Criminal Court.
[6] http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Balfour%20Declaration
[7] http://www.cfr.org/israel/san-remo-resolution/p15248
[8] http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Mandate%20for%20Palestine
[9] http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+General+Assembly+Resolution+181.htm
[10] According to article II (2) of the armistice agreement with Jordan: "no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations."
According to article VI (9) of the agreement: "The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto."
http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations+since+1947/1947-1974/Israel-Jordan+Armistice+Agreement.htm
[11] http://www.jewishvirtuallibrary.org/jsource/arabs/jordanresolution.html
TRANSLATOR'S NOTE:
Paragraph numbers have been reinstated, making
it easier to refer back to the original.
Footnotes with their original
numbers appearing as they do in the text have been reinstated.
Some links have been provided that don't appear in the original
report -- e.g., links to HCJ court cases referred to in the text by
name/number as examples.
This article was posted July 12, 2012 on the Elder of Ziyon website
and is archived at
http://elderofziyon.blogspot.com/2012/07/english-translation-of-legal-arguments.html
(starting page 6, section 5, para 2)
It is a translation of the Hebrew text at
http://www.pmo.gov.il/NR/rdonlyres/E155A1D6-96A7-4143-8233-F126AC9288BF/0/doch090712.pdf