Eli E. Hertz | February 4, 2013
Background
The
language of Article 49 was crafted in the wake of World War II and the
Nazi occupation – an occupation that led to a war of aggression in which
Nazi Germany attacked its neighbors with impunity, committing a host of
atrocities against civilian populations, including deportation and
displacement of local populations in occupied Europe. Millions were sent
to forced labor camps and those of particular ethnic origin, most
notably the Jews, were sent to their deaths in the gas chambers. The
drafters of Article 49 were concerned with preventing future genocide
against humanity.
Critics
and enemies of Israel, including members of the UN and organs such as
the International Court of Justice (ICJ) have come to use the Geneva
Convention as a weapon against Israel, even when statements by
authoritative analysts, scholars and drafters of the document contradict
everything said by those who distort history for politically motivated
reasons.
It
is common knowledge that from its birth, Israel customarily follows
international humanitarian law without being told or forced to do so by
outside authorities.
"Occupied Territory"
The term
"occupied territory," which appears in the Fourth Geneva Convention,
originated as a result of the Nazi occupation of Europe. Though it has
become common parlance to describe the West Bank and Gaza as "occupied territories," there is no legal basis for using this term in connection to the Arab-Israeli conflict.
Professor
Julius Stone, a leading authority on the Law of Nations, categorically
rejected the use of the term "occupied territory" to describe the
territories controlled by Israel on the following counts:
(1)
Article 49 relates to the invasion of sovereign states and is
inapplicable because the West Bank did not and does not belong to any
other state.
(2) The
drafting history of Article 49 [Protection of Civilian Persons in Time
of War] – that is, preventing "genocidal objectives" must be taken into
account. Those conditions do not exist in Israel's case.
(3) Settlement
of Jews in the West Bank is voluntary and does not displace local
inhabitants. Moreover, Stone asserted: that "no serious dilution (much
less extinction) of native populations" [exits]; rather "a dramatic
improvement in the economic situation of the [local Palestinian]
inhabitants since 1967 [has occurred]."
Deportation and Forced Transfer
Arab
opposition to Jewish settlements is based on the last paragraph of
Article 49. The "Occupying Power" may not "Deport or transfer parts of
its own civilian population into the territory it occupies."
One
can hardly believe this baseless ICJ assertion that Israel, the only
free and democratic country in the Middle East used "deportation" and
"forced transfer" of its own population into "occupied territories."
Article 2 of the Fourth Geneva Convention
Article
2 of the Fourth Geneva Convention applies only to conflicts that "arise
between two or more high Contracting Parties," which is not the case at
hand, as Israel is the only High Contracting Party (or state) in this
conflict, and Jordan never was. Thus, the Fourth Geneva Convention is
inapplicable!
Professor
Julius Stone, one of the twentieth century leading authorities on the
Law of Nations touches on the applicability of Article 49 of the Geneva
Convention, writing on the subject in 1980:
"That because of the ex iniuria
principle [unjust acts cannot create law], Jordan never had nor now has
any legal title in the West Bank, nor does any other state even claim
such title. Article 49 seems thus simply not applicable. Even if it
were, it may be added that the facts of recent voluntary settlements
seem not to be caught by the intent of Article 49 which is rather
directed at the forced transfer of the belligerent's inhabitants to the
occupied territory, or the displacement of the local inhabitants, for
other than security reasons.
Support to Stone's assertion can be found in Sir Professor Elihu Lauterpacht's writing in 1968:
"Thus Jordan's occupation of the Old City-and
indeed of the whole of the area west of the Jordan river-entirely
lacked legal justification; and being defective in this way could not
form any basis for Jordan validly to fill the sovereignty vacuum in the Old City [and whole of the area west of the Jordan River]."
Professor
Eugene Rostow, past Dean of Yale Law School, U.S. under Secretary of
State for Political Affairs, and a key draftee of UN Resolution 242,
concluded that the Fourth Geneva Convention is not applicable to
Israel's legal position and notes:
"The
opposition to Jewish settlements in the West Bank also relied on a
legal argument - that such settlements violated the Fourth Geneva
Convention forbidding the occupying power from transferring its own
citizens into the occupied territories. How that Convention could apply
to Jews who already had a legal right, protected by Article 80 of the
United Nations Charter, to live in the West Bank, East Jerusalem, and
the Gaza Strip, was never explained." It seems that the International
Court of Justice never explained it either.
Article 80 of the United Nations Charter
The Mandates
of the League of Nations have a special status in international law.
They are considered to be trusts, indeed 'sacred trusts.' A trust does
not end because the trustee dies [or] resigns.
UN Article 80 was specifically created in San Francisco on 26 June 1945 to
protect the Jewish right of settlement in Palestine under the mandate
against erosion in a world of ambitious states. Jews legal rights of
settlements survived the British withdrawal in 1948.
The
International Court of Justice [ICJ], Rome Statute of the International
Criminal Court [ICC), and the Fourth Geneva Convention lack the
authority to affect ownership of the Territories of Judea and Samaria
known also as the West Bank.
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