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THE TRUTH ABOUT THE OCCUPATION AND THE SETTLEMENTS

by Ted Belman

The pro-Palestinian propaganda machine has succeeded in stigmatizing the Israeli occupation and the settlements. Time and again we hear about the "brutal occupation" and the "illegal settlements". We rarely hear the truth in opposition to these lies.

Israel is accused of occupying the West Bank and Gaza. In fact these territories are described as "The occupied Palestinian territories." Not only are they not occupied in a legal sense, but also they are not "Palestinian" lands in a sovereign sense..

The Fourth Geneva Convention (FGC) is a treaty between signatory states that are called High Contracting Parties (HCP). It regulates the obligations of one HCP who occupies the land of another HCP. It defines the terms "Occupying Power" and "Occupied State". Thus this convention does not apply to the territories because they were not the land of any HCP. They have never been the land of an HCP. Prior to 1967, Jordon was in occupation of these territories, just as Israel is currently in occupation. Jordanian sovereignty over these lands was never recognized and ultimately Jordan relinquished any claims she claimed to have over these lands. The FGC was never applied when Jordan occupied the land and it shouldn't be applied now that Israel does.

Yet the International Court of Justice, when it gave an advisory opinion on the Israeli security fence, "identified Jordan as the occupied power of the West Bank". According to David Matas, an international lawyer of considerable repute, in his well argued book Aftershock, "The judgment moves on from this legal reasoning to labeling the West Bank as Palestinian occupied territory. But this labelling is based on the ethnic composition of the West Bank, not on its legal status." [..] "This assertion by the ICJ that the West Bank is occupied territory is a contortion the Court imposed on the law to get to its desired results of slapping the label "occupier" on Israel." "[This] shows that the primary concern of the court was to connect to pro-Palestinian rhetoric". As a result the Palestinians consider themselves the "occupied power".

Matas notes "That the Geneva Conventions on the Laws of War do not recognize the legal possibility of the occupation of a people, only the occupation of the territory of a state." A Protocol to these conventions does recognize such a possibility but Israel is not a signatory to it and is thus not bound by it.

It must be clearly understood that Israel's occupation is not illegal and the UN has never claimed it to be. In fact Resolution 242 permits Israel to remain in occupation until they have an agreement on "secure and recognized borders".

The Palestinians have no greater claim to a state than any minority group in any other state that wants a state of their own. The Basques and the Kurds come to mind. No one is demanding that they be given statehood.

When Israel's counsel acknowledged to Israel's High Court when it was deliberating on the fence, that Israel held the land in "belligerent occupation", he did so to enable the Court to use the law of occupation in its deliberations. It was not an admission that the lands were Palestinian land or that the FGC applied.

Matas also takes issue with Dore Gold and others for calling the land "disputed land", because others argue all of Israel is disputed land.

UNSC Res 242 sanctioned Israel's right to remain in occupation until such time as the parties reached an agreement on secure and recognized borders. This resolution makes no mention of the FGC. Israel has accepted the PA as the negotiating party. Nevertheless she knows the PA is currently an illegitimate government, having overstayed its mandate, and speaks for no one much less Hamas.

The anti-Zionists argue the settlements are illegal and rely solely on the provisions of the Fourth Geneva Convention which provides that the Occupying power is prohibited from transferring civilian populations to occupied territories. They say that the prohibition against transfer includes a prohibition against encouragement to settle. The matter has never been put to a court for interpretation or determination. But the International Committee of the Red Cross (ICRC) advises "that this provision was intended to prevent a practice adopted during the Second World War in which certain powers transferred portions of their populations to occupied territories for political and racial reasons or in order, as they claimed to colonize those territories."

Nazi Germany enforced two kinds of transfers but in both cases they were forced transfers. The victims were the persons being forced.

Transferring populations is not a grave breach of the Geneva Conventions. However a Protocol to the GC makes it so but Israel is not a party to the protocol and is not bound by it.

The anti-Zionists reject the notion that the proscription is against only forced transfers and argue that the FGC proscribes inducement to move as well. But how can there be a crime of inducement when the person committing the act, the settler, has done nothing wrong. How can you be guilty of a crime by inducing someone to do something which is not a crime? Furthermore, this inducement would be a War Crime on an equal footing with Genocide. The equation is ludicrous. And if the settlers settle on their own volition and not due to inducements, what then? Also it is impossible to prosecute an occupying power. So what individuals would be held responsible?

Even if someone in Israel was convicted of offering inducements to settle, the settlers would not be affected and could remain in the settlements if they wished.

Matas opines, "The interpretation defies the ordinary understanding of criminal responsibility where the person committing the act is the primary wrongdoer and the person inducing the act is only an accessory."

Matas concludes. "There is all the difference in the world between forcible transfer, the offence of the Geneva Convention, and voluntary settlement, even where the settlement is encouraged" (by are merely providing inducements).[..] "Transfer is something that is done to people. Settlement is something people do."

The Rome Statute of the International Criminal Court made it an offence to "directly or indirectly" transfer populations. The ICRC has attempted to interpret "indirect transfers" as "inducements" thereby making them a crime. But the GC certainly does not and that currently is the prevailing opinion.

But that didn't prevent the ICJ, in its advisory opinion above noted, from finding that the settlements violated international law. No reasons were given and no authority cited. But elsewhere it expressed the opinion that the combination of the settlements and the fence amounted to de facto annexation. It ignored the fact that Israel took the position that the fence was not intended to be the border but was merely a security measure. While actual annexation may be a violation of the FGC, the settlements and the fence certainly were not.an annexation or a violation of the FGC. What a legal stretch! And what about the settlements on the west side of the fence? Are they an annexation too?

Thus the ICJ did not conclude that someone in Israel was guilty of inducing settlements or in any other way of transferring populations...

Matas expands on his dim view of the advisory opinion. He considers it an attempt to discredit Israel. In the end it discredited the ICJ. He prays that the ICC will be more judicious. The ICJ, after all, is an organ of the UN who requested it to provide the opinion. Similarly the UN requested Goldstone to investigate Cast Lead and produce a report. This report, like the advisory opinion, was just what the UN "ordered".

But keep in mind that the opinion of the ICJ was just that, an opinion, and is not legally binding on anyone.

The US has traditionally, with the Carter administration being the only exception, refrained from describing the settlements as illegal and instead called them obstacles to peace. In September 2009, Obama went before the United Nations and declared "America does not accept the legitimacy of continued Israeli settlements." This is closer to Carter's position but falls short of declaring them illegal. Nevertheless, it prompted John Bolton to say "This is the most radical anti-Israel speech I can recall any president making."

All this ignores the fact that the Palestine Mandate encouraged close settlement of the land by Jews. This right has never been rescinded and the UN has no right to rescind it. . So Jews from anywhere have the right to settle on the West Bank and the PA and the UN has no right to say otherwise.

To demand that the future Palestinian state be Judenrein, free of Jews, is reprehensible and discriminatory. The West should not condone it, but it does.

Ted Belman is a retired lawyer and the editor of Israpundit. He made aliya last year from Toronto and currently lives in Jerusalem