Ted Belman (originally posted in 2010)
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.
Occupation
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.
Settlements
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.
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