Saturday, December 26, 2009

Jane Hamsher, Grover Norquist Call for Rahm Emanuel’s Resignation

This is a cross post from Jane Hamsher at FireDogLake. The fact that Jane and Grover Norquist are on the same page is noteworthy. More important, they call for an investigation and below the text of a letter to the Attorney General, provide a link to a petition. If you agree, please take a minute to sign it.

Today, Grover Norquist and I are calling for an investigation into Rahm Emanuel’s activities at Freddie Mac, and the White House’s blocking of an Inspector General who would look into it. The letter follows: December 23, 2009

Attorney General of the United States of America
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Attorney General Holder:

We write to demand an immediate investigation into the activities of White House Chief of Staff Rahm Emanuel. We believe there is an abundant public record which establishes that the actions of the White House have blocked any investigation into his activities while on the board of Freddie Mac from 2000-2001, and facilitated the cover up of potential malfeasance until the 10-year statute of limitations has run out.

The purpose of this letter is to connect the dots to establish both the conduct of Mr. Emanuel and those working with him to thwart inquiry, and to support your acting speedily so that the statute of limitations does not run out before the Justice Department is able to empanel a grand jury.

The New York Times reports that the administration is negotiating to double the commitments to Fannie and Freddie for a total of $800 billion by December 31, in order to avoid the congressional approval that would be needed after that date.

But there currently is no Inspector General exercising independent oversight of these entities. Acting Inspector General Ed Kelly was stripped of his authority earlier this year by the Justice Department, relying on a loophole in a bill Mr. Emanuel cosponsored and pushed through Congress shortly before he left for the White House. This effectively ended Mr. Kelly’s investigation into what happened at Fannie and Freddie.

Since that time, despite multiple warnings by Congress that having no independent Inspector General for a federal agency that oversees $6 trillion in mortgages is a serious oversight, the White House has not appointed one.

We recognize that these are extremely serious accusations, but the stonewalling by Mr. Emanuel and the White House has left us with no other redress.

A 2003 report by Freddie Mac’s regulator indicated that Freddie Mac executives had informed the board of their intention to misstate the earnings to insure their own bonuses during the time Mr. Emanuel was a director.

But the White House refused to comply with a Freedom of Information Act request from the Chicago Tribune for those board minutes on the grounds that Freddie Mac was a “commercial” entity, even though it was wholly owned by the government at the time the request was made.

If the Treasury approves the $800 billion

commitment to Fannie and Freddie by the

end of the year, it will mean that under the

influence of Rahm Emanuel, the White House

is moving a trillion-dollar slush fund into

corruption-riddled companies with no

oversight in place.

This will allow Fannie and Freddie to continue to purchase more toxic assets from banks, acting as a back-door increase of the TARP without congressional approval.

Before the White House commits any more money to Fannie and Freddie, we call on the Public Integrity Section in the Justice Department to begin an investigation

* into the cause of Fannie and Freddie’s conservatorship,
* into Rahm Emanuel’s activities on the board of Freddie Mac (including any violations of his fiduciary duties to shareholders),
* into the decision-making behind the continued vacancy of Fannie and Freddie’s Inspector General post, and
* into potential public corruption by Rahm Emanuel in connection with his time in Congress, in the White House, and on the board of Freddie Mac.

We also call for the immediate appointment of an Inspector General with a complete remit to go after this information.

We both come from differing political ideologies.

One of us is the conservative head of a transparency foundation, and the other is the publisher of a liberal political blog. But we make common cause today out of grave concern for the future of our country in the wake of corruption-riddled bailouts.

These bailouts continue to rob Main Street to benefit Wall Street, and, because of that, we together demand the resignation of Mr. Emanuel, a man who has steadfastly worked to obstruct both oversight and inquiry into the matter.

Rahm Emanuel’s conflicts of interest render him far too compromised to serve as gatekeeper to the President of the United States.

We will lay out the details further below, and are available at your earliest convenience to meet with you directly.


Sign our petition to AG Holder: investigate Rahm Emanuel.

(Additional background information after the jump.)

Background information:

Rahm Emanuel was appointed to the board of Freddie Mac in February of 2000 by Bill Clinton, after serving as White House political director where he was a vocal defender of Mr. Clinton during the Monica Lewinski matter. He served there until leaving to run for Congress in 2001, which qualified him for $380,000 in stock and options and a $20,000 annual fee.

According to the Chicago Tribune, during his tenure the board was notified by executives of their plans to misstate the earnings of Freddie Mac: “On Emanuel’s watch, the board was told by executives of a plan to use accounting tricks to mislead shareholders about outsize profits the government-chartered firm was then reaping from risky investments. The goal was to push earnings onto the books in future years, ensuring that Freddie Mac would appear profitable on paper for years to come and helping maximize annual bonuses for company brass.” (3/5/2009)

The Tribune further reported that “during his brief time on the board, the company hatched a plan to enhance its political muscle. That scheme, also reviewed by the board, led to a record $3.8 million fine from the Federal Election Commission for illegally using corporate resources to host fundraisers for politicians. Emanuel was the beneficiary of one of those parties after he left the board and ran in 2002 for a seat in Congress from the North Side of Chicago.”

In December 2003, a report (PDF) was written by Armando Falcon Jr., head of the entity charged with oversight of Freddie Mac, the Office of Federal Housing Enterprise Oversight (OFHEO). The report asserts that company executives “demanded whatever level of earnings management was necessary to achieve steady rapid growth in Enterprise profits.” It also “provided evidence that non-executive members of the Board were aware, and supportive of, management in this regard, including the use of derivatives to improperly manage the earnings of Freddie Mac,” citing notes from a June 2, 2000 meeting of the Board of Directors (p. 24).

The OFHEO report concluded that board had “failed in its duty to follow up on matters brought to its attention.” The SEC filed a complaint (PDF) saying that Freddie Mac had “misreported profits by billions of dollars in order to deceive investors between the years of 2000 and 2002,” per ABC News.

In Congress, Rahm Emanuel worked to pass a bailout of Fannie and Freddie, cosponsoring the Housing and Economic Recovery Act of 2008, which also dissolved OFHEO. It moved their regulatory authority to the Federal Housing Finance Agency (FHFA), which took Fannie and Freddie under conservatorship in September 2008. The same act abolished the Federal Housing Finance Board (FHFB) and replaced it with the FHFA.

After Mr. Emanuel was named Chief of Staff, the White House denied a Chicago Tribune Freedom of Information Act request for information on his Freddie Mac activities: “The Obama administration rejected a Tribune request under the Freedom of Information Act to review Freddie Mac board minutes and correspondence during Emanuel’s time as a director. The documents, obtained by Falcon for his investigation, were “commercial information” exempt from disclosure, according to a lawyer for the Federal Housing Finance Agency.” However, at the time of the request Freddie Mac was no longer a “commercial” enterprise, having been taken over by the government in September of 2008.

According to ABC News, the Justice Department is in possession of these records, yet no indictments have been forthcoming: “Freddie Mac records have been subpoenaed by the Justice Department as part of its investigation of the suspect accounting procedures” they reported in November 2008.

When the OFHEO and the FHFB were abolished, FHFB employees were automatically transferred to the FHFA and retained their “same status, tenure, grade, and pay.” Ed Kelly, who had been the Inspector General for the FHFB, was looking into the wrongdoing of Fannie and Freddie at the FHFB when the Justice Department, using the authority of the 2008 law Emanuel cosponsored, stripped him of Inspector General authority and removed him from oversight of Fannie and Freddie.

The Huffington Post obtained copies of an internal memo (PDF) on the ruling by the Justice Department’s Office of Legal Counsel. They report that “the ruling came in response to a request from the Federal Housing Finance Agency itself — which means that a federal agency essentially succeeded in getting rid of its own inspector general.”

The memo states that “Congress did not intend for the FHFA to have an Acting or interim IG pending the confirmation of a PAS IG.” But according to the Huffington Post, “the chairmen of the House and Senate banking committees, Rep. Barney Frank (D-Mass.) and Sen. Chris Dodd (D-Conn.), both told HuffPost that Congress had no intention whatsoever of revoking Kelley’s authority to operate as an IG.”

According to Neil Barofsky, the Special Inspector General overseeing the TARP bank bailout: “It’s a serious gap in oversight,” Barofsky told HuffPost of Ed Kelley’s loss. “It does impact what we do. Ed was a member of our TARP IG council and a partner in our investigative work.” Barofsky said he still investigates areas of FHFA, but his mandate only covers “a sliver of what they do.”

The Huffington Post further reports that it is the White House’s failure to appoint an Inspector General that has stalled the process: “Federal Housing Finance Agency officials insist[] that they notified Congress about the problem and pressed the Obama administration “multiple times” to appoint someone to the position tasked with rooting out wrongdoing at Fannie Mae, Freddie Mac and the Federal Home Loan Bank,” they report.

I addition to his role as White House Chief of Staff, Mr. Emanuel is heavily involved in decisions made by the Treasury Department . The Wall Street Journal reported in May that “Rahm wants it” has become an unofficial mantra in the Department. It is therefore of grave concern that the New York Times reports the Treasury is negotiating to increase their commitment to Fannie and Freddie, in the absence of independent oversight: “Fannie Mae and Freddie Mac, which buy and resell mortgages, have used $112 billion — including $15 billion for Fannie in November — of a total $400 billion pledge from the Treasury. Now, according to people close to the talks, officials are discussing the possibility of increasing that commitment, possibly to $400 billion for each company, by year-end, after which the Treasury would need Congressional approval to extend it. Company and government officials declined to comment.”

Greek admiral's visit signifies deepening military ties with Israel

The strategic and military ties between Greece and Israel are deepening in reverse proportion to Turkey's estrangement from Israel and its growing closeness to Iran and Syria, DEBKAfile's military sources report. Significantly, when the commander of the Greek Navy, Vice Admiral G. Karamalikis secretly visited Israel earlier this month, he won the sort of red carpet which the Israel Defense Forces high command rarely gives foreign military visitors. Israeli Navy chief Vice Adm. Eli Marum took him around Navy HQ in Haifa port plus unusual tours of the top-secret INS Dolphin Type 800 submarine and the Saar V class INS Eilat 501 corvette.

The Dolphin is ranked as Israel's premier long-distance deterrent weapon and believed by Western military experts to carry nuclear-capable cruise missiles.

The Eilat was part of the Israeli submarine's escort when it passed through the Suez Canal last June, starting out from the Mediterranean and heading to the Red Sea and back. Vice Adm. Marum accompanied the visitor and briefed him on the navy's operational capabilities.

This demonstration focused on the vessels Israel has thrust to the fore in the last two years for Iran's benefit, to display the extent of its long-distance military reach as far as Iran's shorelines, the Persian Gulf and the Arabian Sea.

The military partnership between Israel and Greece is not new. In June 2008, their two air forces and navies conducted a joint war game, during which 100 Israeli fighter-bombers flew out from their bases as far as Greek skies and back, spanning a distance roughly equal to that between Israel and Iran. The exercise was meant to show Tehran the Israeli Air Force's ability to cover the distance to Iran's nuclear facilities and back. According to Western military sources, the maneuver included practice sorties by Israeli warplanes against Russian-made S-300 anti-missile missile batteries deployed by the Greek Army.

Friday, December 25, 2009

Israel's PTA commander-in-chief


Unbeknownst to most Israelis, this week marked a critical shift for the worse in the regional balance of power. While IDF Chief of General Staff Lt.-Gen. Gabi Ashkenazi was busy demanding that the government pay a ransom of more than a thousand terrorists for captive soldier Gilad Schalit, few paid attention to Iran's newest strategic successes.Over the past week Lebanon capitulated to the Iranian axis. Turkey solidified its full membership in the axis. And Egypt began to make its peace with the notion of Iran becoming the strongest state in the region.

Less than five years after former Lebanese prime minister Rafik Hariri was assassinated by Syria, his son Prime Minister Saad Hariri paid a visit to Damascus to express his fealty to Syrian President Bashar Assad. Days later, Iranian Foreign Minister Manouchehr Mottaki visited Beirut and began giving the Lebanese government its new marching orders.

On Wednesday, Hizbullah forces deployed openly to the border with Israel under the permissive eye of the US-armed Lebanese army. Lebanon announced that it was no longer bound by binding UN Security Council Resolution 1559 that requires Hizbullah to disarm. And Hariri announced that he will soon visit Teheran.

While Defense Minister Ehud Barak and his media echo chamber insist that Turkey has buried its hatchet with Israel, on Wednesday Prime Minister Recip Erdogan led a delegation with 10 cabinet ministers to Damascus. There, according to the Syrian and Turkish Foreign Ministries, they signed 47 trade agreements.

This Turkish-Syrian rapprochement is not limited to economic issues. It is a strategic realignment. As Assad's spokeswoman Buthaina Shaaban explained to Iran's Arabic-language al-Alam television channel, "We are working to establish close ties between Syria, Turkey, Iran and Iraq so these countries can act as one regional bloc in order to promote peace, security and stability in the Middle East, while keeping the West's dictates and lust for the region's natural and oil resources at bay."

For years Egypt has been the most outspoken Arab opponent of Iran's moves towards regional hegemony. This past summer Egypt did not hesitate to accuse Teheran of trying to overthrow the regime when it discovered a network of Iranian-commanded Hizbullah operatives planning a massive terror assault on the Suez Canal.

Yet on Sunday, Mubarak hosted Ali Larijani, Iran's former nuclear boss and current speaker of Iran's parliament in Cairo. Following their meeting Mubarak traveled to the Persian Gulf for consultations on Iran's nuclear program. Given Mubarak's poor health, the fact that his meetings with Larijani sent him flying to Saudi Arabia indicate that something of major importance has just occurred.

Many IDF commanders are happy to leave the issue of Iran to the US, which they insist is capable and willing to deal with it. But the fact is that since Iran rejected President Barack Obama's diplomatic overtures, the US has shown clear signs of strategic dissonance.

While Israel clings to the hope that sanctions might prevent Iran from going nuclear, this week that notion was exposed as a fiction. Although Obama gave the House of Representatives a green light to vote on sanctions against Iran, he quickly demonstrated that Teheran had no reason to worry.

First Obama and Senate Foreign Relations Committee Chairman John Kerry blocked discussion of sanctions in the Senate. And now - with full White House backing - Kerry is trying again to appease the Iranians by begging them to let him visit Teheran. Clearly appeasement is the only play in Obama's book.

Furthermore, China's refusal to back sanctions in the UN Security Council coupled with Lebanon's and Brazil's ascension to the council next month obviate any possibility that a harsh international sanctions regime will be instituted against Iran any time soon.

FOR ISRAEL, Iran's successful moves to preempt American threats to isolate it should have been the top news story and the main issue on the government's and the General Staff's agendas. But it wasn't. Indeed, no one seemed to notice. They were otherwise occupied.

For the past week, the government's security cabinet and the IDF's top commanders have devoted themselves entirely to discussing how many terrorists Israel will give Hamas in exchange for captive soldier Gilad Schalit. For three days, the security cabinet met around the clock to discuss this issue alone. And the most insistent advocate for accepting Hamas's demand that Israel release over a thousand terrorists has been IDF Chief of General Staff Ashkenazi.

On Monday, Channel 2 reported that National Security Adviser Uzi Arad accused Ashkenazi of acting like the president of the IDF's parents' association rather than the chief of General Staff. Arad criticized Ashkenazi for demanding that Israel ransom the captive soldier while failing to supply the government with any option to use force to rescue Schalit.

The media pounced on the Arad-Ashkenazi story like hungry wolves. The national debate was dominated for two days by the burning questions of whether or not Arad would apologize, and whether Netanyahu can continue to retain Arad's services after he insulted Ashkenazi.

Conspicuously absent from the media's coverage of the spat was any discussion of the reasonableness of Arad's criticism. So, too, the media ignored the question of what - if anything - Ashkenazi's behavior tells us about the IDF mindset and disposition as Iran consolidates its regional power.

The fact is that Arad's criticism was on point. Schalit has been captive in Gaza for more than three years. At no point has the IDF provided the government with an option for rescuing him.

A year ago, Ashkenazi sent the IDF's best combat units into Gaza. During their stay, they were not ordered to rescue Schalit. And now, a year later, Ashkenazi is demanding that the government pay for the IDF's failure to rescue Schalit by accepting a deal that will imperil the country. And he is claiming that failure to do so will constitute nothing less than an abdication of Israel's moral responsibility to its soldiers.

Following the publication of Arad's attack on Ashkenazi, the IDF's Spokesman's Office issued a statement that army commanders are fulfilling their "professional duties" by insisting that Israel ransom Schalit.

This is untrue. It is not the professional duty of IDF commanders to opine on ransom demands. They have no professional qualifications to determine the reasonableness of ransom demands. In Jewish history, the role of ransoming captives has traditionally been the writ of rabbis, not military men. The writ of military men was to rescue them.

The professional responsibility of the IDF is to provide the government with military options for achieving its strategic objectives - including rescuing Schalit. By failing to provide such options, the IDF - with Ashkenazi at its helm - has failed to uphold its professional responsibilities. Worse still, by demanding that the government endanger the country to ransom Schalit, Ashkenazi and his generals are telling us something distressing about how they define their role as military commanders.

The IDF's apparent confusion about its role is not new. It was this confusion that led the army to fail to present the government with options for defeating Hizbullah in Lebanon in 2006 or for defeating Hamas in Gaza last year.

Whereas former prime minister Ehud Olmert properly received most of the blame for Israel's poor performance in the Second Lebanon War and in Operation Cast Lead, the fact is that it was the IDF that failed to deliver the goods. The operations the IDF designed, recommended and carried out in both campaigns were not meant to defeat Israel's enemies. All they were supposed to do was demonstrate Israel's firepower. And even this wasn't done particularly effectively.

In 2006, then-chief of General Staff Lt.-Gen. Dan Halutz rejected a ground invasion of south Lebanon in favor of an air campaign. When it became clear some 24 hours into the operation that an air campaign would be incapable of defeating Hizbullah or even degrading its ability to paralyze northern Israel with short-range rockets and missiles, Halutz and his deputies refused to conduct a ground assault. And, when after three weeks of failure they finally deployed ground forces in significant numbers, they didn't know what to tell them to do.

For his part, Ashkenazi sat on his hands for months as southern Israel was pummeled with rockets and mortars from Gaza and refused to offer the government a military option for protecting the South. When last December Hamas forced his hand by announcing that it was abrogating its cease-fire with Israel, Ashkenazi grudgingly agreed to let the IDF respond to its aggression. But even then, he opted for an operational concept that had no chance of defeating Hamas. Ashkenazi rejected the notion of retaking the Gaza-Egypt border. He refused to order IDF forces into Gaza's population centers. By opting not to do these things, Ashkenazi guaranteed that the IDF would accomplish little. Consequently, even top IDF commanders acknowledged this week that the army will be forced to return to Gaza in due course. There, thanks to Ashkenazi's refusal to defeat Hamas, Israel's soldiers will face a far more formidable foe than the one they were not allowed to defeat last year.

While refusing to fight Israel's enemies, under Ashkenazi, like under Halutz before him, the IDF has enthusiastically attacked religious Zionists. Since 2002, the only sustained operation the army has carried out successfully was the expulsion of all Israelis from Gaza and northern Samaria in 2005.

When Defense Minister Ehud Barak severed the IDF's ties with the Har Bracha Yeshiva last week, he was acting on Ashkenazi's advice. Ashkenazi has promoted anti-settler commanders like Col. Yitzhak Barr. As a brigade commander in Samaria, Barr has reportedly prohibited his soldiers from fraternizing with Israeli families on Shabbat and personally refused to visit IDF Chief Rabbi Brig.-Gen. Avichai Rontzky at his succa during Succot.

EVERY DAY the dangers to Israel's security and very survival mount. At this time, the government and the people of Israel need to be able to trust in the IDF's ability to defend the country. Rather than earning that trust, those tasked with our defense are spending their time berating the political leadership for their own failures. Moreover, they are expressing a disturbing desire to pass the buck on fighting Israel's enemies while aggressively hounding Israelis.

This situation is unacceptable. Either Ashkenazi and his generals should prove they are capable of performing their jobs, or they should be replaced.

'We will Continue in Father's Path of Faith'

Gil Ronen 'We will Continue Father's Path'

Thousands of people took part in the funeral of Rabbi Meir Avshalom Chai who was murdered Thursday by a Fatah terror squad. The funeral procession started out at 10:00 AM from the Shamgar Funeral Home and went to the cemetery at the Mount of Olives.
Chai (40) lived in Shavei Shomron for 14 years. He was married with seven children, the youngest of whom is two months old.

Minister Yaakov Neeman eulogized Rabbi Chai tearfully and paid tribute to his great virtue as a teacher of young children.

Samaria Regional Council Head Gershon Mesika said that “Rabbi Meir is a victim of the folly of the government of Israel. His murder is the result of the removal of checkpoints. Two weeks ago the main checkpoint between Shechem and Tulkarm was opened. The government of Israel preferred the Arab's fabric of life to the Jew's life.” Mentioning Defense Minister Ehud Barak and Prime Minister Binyamin Netanyahu, Mesika said: “I demand that you face the widow and orphans and ask forgiveness because you cannot say 'our hands did not spill this blood.'”

To the Arabs he said: “You have hit the lion in our ranks but you will not break our spirit. We vow to you, Rabbi Meir, that we will continue in your path, to settle in the lands of our forefathers, in spite of them.”

A father to hundreds

MK Nissim Ze'ev (Shas) said that Rabbi Meir was “a father to all of us and to... hundreds of children whom he taught Torah.”

MK Yaakov Katz (NU) said: “Rabbi Meir, you are all of Israel; you are a hero of Israel in the instruction of Torah and in fear of the Heavens.”

Turning to the residents of Judea and Samaria, he said: “We are the few who hold the many. Rabbi Meir, you represent the courage of the settlers. You represent the courage of those who drive at night without guards or security details, you are the hero who shines his countenance to the children at night and in the day. With our devoutness and the willingness to sacrifice we will raise up those who are distant. We need to teach the Prime Minister and the Defense Minister some Torah.”

Study, not revenge

Eliyahu, the Rabbi's son, said: “I want to say to the youth – continue in my father's path. Father wanted faith, he wanted Torah study, he wanted prayers. He could not stand to see that there are no tefillin. He had to see all of the mitzvot (commandments). If you want to memorialize my father these are the things you should do. Not to beat up Arabs with sticks. We are human beings and we will not shoot them in the head for no reason. We are human beings, we are the youth of Samaria... Father would be happiest if he saw us studying.” He asked Defense Minister Barak to respect the dedication of the youth of Judea and Samaria.

Rabbi Meir Avshalom Chai left the community of Einav at 4:30 PM Thursday and drove toward his home in Shavei Shomron. Terrorists in a car that overtook him opened heavy fire at him. Ten bullets hit Meir in the head. He was mortally wounded and died a few minutes later.

Thursday, December 24, 2009

For Obama, 2010 in the Middle East Looks More Like the Precipice of Doom Than of Achievement

Barry Rubin

The year 2010 is going to be interesting. Well, all years in the Middle East are interesting; many of them are far too interesting.

For the Obama Administration, I’m going to predict, it will not be a fun year. True, the best face will be put on things. Since it is protected—perhaps next year to a lesser degree--by the media, the administration has a special advantage over its predecessors. Yet there are two huge and two potentially serious problems which it cannot solve.

The first unsolvable problem is the Arab-Israeli conflict. Last January, President Barack Obama promised a quick solution to the issue. Then he promised that an Israeli freeze of construction on settlements would lead to a diplomatic breakthrough. A few months later, he promised he’d get some Arab concessions in response to an Israeli freeze. In September he promised that final status negotiations would begin in two months. None of these things happened.

In fact, Obama’s policy sabotaged progress. After all, if he was bashing Israel to some extent and demanding a freeze, why should the Palestinians give Israel a way out by negotiating and accept anything less than a total freeze? U.S.-Israel relations have now improved considerably and are good, but there’s no talks going on because the Palestinian Authority is saying “no.”

Remember in his Cairo speech, Obama said the Palestinian situation was “intolerable.” The Palestinians disagree with him. They know they are doing pretty well materially, the world is criticizing Israel, and they don’t have to make any concessions.

But here’s where it gets interesting: there is a very serious prospect of no direct or any serious Israel-Palestinian negotiations during all of 2010. And in late September, Israel’s ten-month freeze ends. No progress, no continued freeze.

There is literally no way out for the Obama Administration. The only route to getting talks is either to get more unilateral concessions from Israel (isn’t going to happen) or to pressure the Palestinian Authority (also isn’t going to happen). Checkmate; deadlock; no way out.

The Obama Administration is not likely to say: We were wrong. This is tougher than we thought. Nor are they probably going to put the issue on the back burner openly. Nor are they going to criticize the Palestinian Authority. So they will pretend to be working hard, sending their envoy zipping around, looking for some opening to leap into action. But isn’t this going to be pretty obviously a charade? Well, only if the media wants to say so.

Then there’s Iran. Originally, the administration was going to increase sanctions in September. That was moved back to the end of December. Now it is too late to meet that deadline. At best, we are going to see negotiations in January and maybe—maybe—increased sanctions in February. But who knows?

That’s not all. The administration keeps pretending that it has China and Russia on board for sanctions. Anyone who actually reads Chinese and Russian statements should know this is untrue. Can this be kept secret for very long in 2010? Either there will be no sanctions, ridiculously weak sanctions or sanctions without these two. Once again, there is no way out for the administration from looking like a failure.

And by the end of the year or earlier it will be clear that any sanctions applied aren’t working. The year 2010 is the make or break year for stopping Iran. Not hard to guess which it will be.

I’m not chortling over this as I’d greatly prefer the administration would be brilliantly successful in bringing peace—a good one, of course, not just any deal—and ensuring Tehran didn’t get nuclear weapons. But it’s not going to happen.

Two other issues may cause problems but are not likely to bring benefits in 2010, though they are designed to bring political dividends for when Obama is up for reelection in 2012. Iraq will be a headache if the Iranians decide, in part due to their more belligerent mood and as a response to sanctions, to escalate the violence. Syria, unhappy that the United States has not caved in to them, may also do so. This could lead to higher casualties making the troop withdrawal look either like running away or at least ineffective.

The same basic point holds for Afghanistan, where Obama’s version of the surge will be in full implementation. The Taliban might decide to make America look defeated; Pakistan isn’t going to help. Again, there could be high U.S. casualties and the appearance of failure.

Then there’s the chance that Obama’s vaunted popularity will crack. Palestinians will claim he isn’t giving them everything for nothing; Iran, Syria, Hamas, and Hizballah will try to make short work of making America look bad. What if, for example, Obama has to veto some far-out UN Security Council resolution that, for example, demands that Israel return to the 1967 borders? Maybe he’ll be able to get it watered down but that could happen.

There’s always the chance of a major terrorist attack against some American target succeeding.

In short, 2010 does not look good at all for Obama. Is there any chance of a big success in the region for him? (Your eyes dart around the room trying to think of something. Finally, you give up and give the inevitable answer.) No.

The most critical question of all is whether the administration will learn from its experience. There are a lot of mistaken conceptions to learn from:

The Palestinians aren’t desperate to make peace. Moving away from Israel doesn’t bring you any material gains and indeed makes it even harder to get progress toward peace. Arab states won’t help you. They aren’t going to lift a finger to stop Iran while demanding you do so. Engaging Iran and Syria doesn’t work. Being popular among Muslims and Arabs is a fragile thing and doesn’t get you much more than a cup of coffee when you visit the Saudi king. Apologizing makes you look weak and everyone will then take advantage of you. Shall I go on?

Usama bin Ladin says that everyone wants to bet on the strong horse. Obama’s policy makes America look like a dead horse. And, yes, Middle East dictatorships and revolutionary Islamist groups love flogging a dead horse.

Shall Obama hope that 2011 comes fast? Well, that’s the year Iran will probably get nuclear weapons.

Barry Rubin is director of the Global Research in International Affairs (GLORIA) Center and editor of the Middle East Review of International Affairs (MERIA) Journal. His latest books are The Israel-Arab Reader (seventh edition), The Long War for Freedom: The Arab Struggle for Democracy in the Middle East (Wiley), and The Truth About Syria (Palgrave-Macmillan).

12th Graders: We’ll Fight for Israel and not Expel Jews

Tzvi Ben Gedalyahu
A7 News

Two hundred 12th graders from all parts of Israel, including urban centers, have written Defense Minister Ehud Barak that they want to serve in the army but will not accept orders to expel Jews from their homes.

The unprecedented declaration represents another slap in the face of the Defense Minister, whose policies prompted the Hesder yeshiva in Arad to announce on Wednesday it is pulling out of the Hesder program after he threw the Har Brachah yeshiva out of the Torah study army service program. Defense Minister Barak has rejected as insufficient Hesder yeshiva Rabbi Eliezer Melamed’s signed statements opposing soldiers publicly protesting the expulsion policy. Barak also has insisted on using soldiers to help carry out police actions to expel Jews.

Under the title "Petition to the Security Services,” the 12th graders wrote, “We want very much to enlist in the IDF and fight for the defense of our Land of Israel. We consider the use of the army for political purposes and the war against Jews as a danger that can ruin the army, especially when it is involved in a grave sin against settling the Land.

“We declare that our faith in the Torah comes before any other law or order, and therefore any [arm order that is against the Torah will be refused. We will not participate in any expulsion of a hilltop community or Jewish community in the Land of Israel. That is the way we will preserve the true values and principles of the IDF."

Meir Teller of Haifa, one of the signatories, explained that “we are supposed to fight against enemies and not against citizens who are among our own people.” He noted that that the ”best soldiers” in the 2006 Second Lebanon War and 2009 Operation Cast Lead were residents of Judea and Samaria “and were not leftists from northern Tel Aviv.”

The student charged that Prime Minister Binyamin Netanyahu and Defense Minister Barak are trying to turn the best soldiers into enemies and to use the army against them.

Another signatory is Hanan Liberzon of Kiryat Tivon, a suburb of Haifa. "Barak’s hypocrisy is outrageous,” he declared. “It is inconceivable that the army sends officers to learn in universities where lecturers and professors incite against the country and against serving in the army, and then Defense Minister Barak targets rabbis who dedicate their lives to educating according to the Torah and to serve in the best units in the IDF.”

The 12th graders’ letter coincides with growing opposition among National Religious rabbis to Barak’s actions against the Har Brachah yeshiva and to the continued use of soldiers to raid Jewish communities and expel their residents. Leading rabbis and educators have warned that the Defense Minister is risking the loss of National Religious students who comprise a large part of elite combat units.

'Anti-Freeze' Action Plan Released

Hillel Fendel
A7 News

Grassroots organizations in Yesha (Judea and Samaria), together with the National Union faction in the Knesset, have published a rough draft of a plan to actively fight the construction freeze. The program is formulated carefully and logically, yet deals with what it calls an “existential threat” and the “first step towards the destruction of most of the Jewish presence in Yesha.” The Komemiyut (Proudly Upright) organization will disseminate the plan in post offices throughout Judea and Samaria at the end of this week. The program begins by outlining the calamitous nature of the construction freeze decision by Prime Minister Binyamin Netanyahu, explains the draconian nature in which the freeze is expected to be implemented, and concludes with an operative set of steps to fight it.

Excerpts: The decision to freeze all construction in Judea and Samaria is not something that can be easily ignored. It is nothing less than the first step – irreversible, under natural circumstances – towards expulsion and destruction of a far worse extent than what we experienced in Gush Katif and northern Shomron.

Just as it was naïve to believe that the expulsion from Gush Katif would legitimize Israel’s right to defend its southern communities – the world expressed its “understanding” for this right in the Goldstone Report – it is similarly blind to imagine that after ten months, the world will allow us to resume building. Past experience shows us that the international pressure and the Palestinian appetite will simply grow stronger.

It is also detached from reality to think that local town councils in Yesha will ever again be allowed to authorize construction. The freeze decree is clearly the beginning of a slippery and dangerous slope leading to the destruction of the entire Jewish settlement enterprise. One must be naïve to believe that this is only a temporary measure and to strenuously defend it, as Cabinet Ministers Yaalon, Begin, Lieberman and others have done.

The handwriting is on the wall in large, clear writing; we must simply open our eyes, read and internalize.

The very day (Friday) after the construction freeze order was signed, and up until the minutes that the Sabbath began, freeze orders were distributed to local mayors. Aerial photos were even taken in order to document the status quo. The speed with which this process was done shows that this was not a sudden decision, but one that was preceded by careful, long planning – far from the eyes of the public and by deceiving the voters.

The next logical step is negotiations and Israeli withdrawal from most of Yesha and the destruction of the towns and expulsion of their residents.

It is still not too late, however, to stop this. We can still bring the healthy political forces in the nationalist camp to get Netanyahu to change his path. We can still get Israeli society, and the decision makers, and the Defense Ministry subcontractors – those who do not realize that they should refuse the orders – to realize that choking the settlement enterprise in Yesha is mission impossible.

Know Your Opponent: How They Plan to Enforce the Freeze

The defense establishment is relating to the enforcement of the freeze as a national mission encompassing the entire IDF, from the Chief of Staff down to the regional brigades in Yesha. Just like before the Gush Katif expulsion, the army is preparing to provide “mental preparation” for the policemen and soldiers who will take part, including motivational talks about how the freeze is critical for national security. Some 40 teams of inspectors, including representatives of the Civil Administration, Border Guard, and IDF guards, will enforce the freeze, driving around in bullet-proof vehicles to the various communities.

They will attempt to create a “deterrence effect” by arresting individuals who will serve as scapegoats by being punished severely, with the expectation that others will be afraid to follow in their footsteps. This is critical for the government, since they know that they will not be able to deal with thousands of opponents – but if we realize that in truth they cannot punish thousands of us, and we thus break their “deterrence effect,” and simply not be afraid of them – we will have won.

Plan of Action: Basic Principles

We must create an atmosphere of tension and agitation, in order to get the nationalist-camp politicians to truly pressure and threaten Netanyahu.

No Dialogue!

We must also employ psychological warfare, in the sense of, “We’re upsetting the board and not playing anymore.” There must be no dialogue with the government or the IDF. Dialogue only serves their purposes, of keeping things under control. Their fear of the unknown and lack of control is much greater than ours, and if we don’t talk with them, they have more to lose than we do.

Netanyahu, for instance, has humiliated the Yesha leadership by refusing to meet with them ever since he was elected – except for immediately after the freeze orders were issued, when he wished simply to calm us down and neutralize our ability to fight. Meetings of this sort can help us in small things, but the price will be our ability to wage an effective fight.

We call upon the mayors, rabbis and community leaders not to meet with or have any contact with anyone connected with the enforcement of the freeze. This “extreme” move will significantly complicate the enforcement, and will also broadcast a message of how grave the construction freeze truly is.

A basic assumption is that the State will not be able to enforce the freeze in the face of thousands and tens of thousands of opponents. Neither will the IDF be able to handle refusals by dozens and hundreds of soldiers.

The struggle must therefore be broad and comprehensive, and supported by public leaders and rabbis. Groups of dozens and hundreds of adults and youths must be organized, where everyone places on brick on a new building. In this relatively simple manner, we will show that enforcing the freeze is impossible and that we will not take it lying down.

No Fear

We must also not be afraid to be arrested. We must fight their psychological warfare by showing that we are not afraid, and turning this approach to our advantage. The courts will not be able to deal with hundreds and thousands of indictments and arrests. It will not only stop up the court system, it will also broadcast a message of lack of control, of impending catastrophe, of a nationalist party against the public, etc.

In short, the motto is, “Arrest Means Victory.”

Significant Quantities’ of Oil Discovered in Center of Israel

Tzvi Ben Gedalyah

( An everlasting hope of finding significant amounts of oil in Israel may have been realized with the announcement Thursday that “significant quantities” of oil were found in a well in the area of Rosh HaAyin, a city located east of Tel Aviv on the western edge of Samaria.The Givat Olam (Hebrew for “Hill of the World”) Exploration Limited Partnership informed the Tel Aviv Stock Exchange of the discovery, but added, “At this stage it is not possible to estimate the significance of these findings." The company’s stock more than doubled on the stock market, according to Globes.

The firm said the oil was found late Wednesday night and that “more than 60 percent gas was measured in the drill mud.” The commercial potential of the oil field will not be known until tests and calculations on production and processing can be completed.

The “Meged” well in the Rosh HaAyin area is one of the few that have been drilled outside of the Negev and Dead Sea area. Several studies by independent consultants have confirmed the potential for oil in the area, and previous drillings have encouraged the prospects of discovering enough oil and gas for commercial production.

Earlier this year, a huge gas field was discovered off the Mediterranean Coast. The gas is expected to be on line in three years and is anticipated to help Israel become self-sufficient in gas. It also is providing hundreds of high-paying jobs for developing the field and bringing the gas from the sea, off Hadera and Haifa, to the coastline.

If the Meged well proves commercially viable, it will further Israel’s longtime hope of being energy independent and is likely to strengthen the shekel against world currencies.

The Illegal-Settlements Myth

David M. Phillips From issue: December 2009

The conviction that Jewish settlements in the West Bank are illegal is now so commonly accepted, it hardly seems as though the matter is even open for discussion. But it is. Decades of argument about the issue have obscured the complex nature of the specific legal question about which a supposedly overwhelming verdict of guilty has been rendered against settlement policy. There can be no doubt that this avalanche of negative opinion has been deeply influenced by the settlements’ unpopularity around the world and even within Israel itself. Yet, while one may debate the wisdom of Israeli settlements, the idea that they are imprudent is quite different from branding them as illegal. Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is “Arab” land. Followed to its logical conclusion—as some have done—this narrative precludes the legitimacy of Israel itself.These arguments date back to the aftermath of the Six-Day War. When Israel went into battle in June 1967, its objective was clear: to remove the Arab military threat to its existence. Following its victory, the Jewish state faced a new challenge: what to do with the territorial fruits of that triumph. While many Israelis assumed that the overwhelming nature of their victory would shock the Arab world into coming to terms with their legitimacy and making peace, they would soon be disabused of this belief. At the end of August 1967, the heads of eight countries, including Egypt, Syria, and Jordan (all of which lost land as the result of their failed policy of confrontation with Israel), met at a summit in Khartoum, Sudan, and agreed to the three principles that were to guide the Arab world’s postwar stands: no peace with Israel, no recognition of Israel, and no negotiations with Israel. Though many Israelis hoped to trade most if not all the conquered lands for peace, they would have no takers. This set the stage for decades of their nation’s control of these territories.

The attachment of Israelis to the newly unified city of Jerusalem led to its quick annexation, and Jewish neighborhoods were planted on its flanks in the hope that this would render unification irrevocable. A similar motivation for returning Jewish life to the West Bank, the place where Jewish history began—albeit one that did not reflect the same strong consensus as that which underpinned the drive to hold on to Jerusalem—led to the fitful process that, over the course of the next several decades, produced numerous Jewish settlements throughout this area for a variety of reasons, including strategic, historical and/or religious considerations. In contrast, settlements created by Israel in the Egyptian Sinai or the Syrian Golan were primarily based initially on the strategic value of the terrain.

Over the course of the years to come, there was little dispute about Egypt’s sovereign right to the Sinai, and it was eventually returned after Nasser’s successor Anwar Sadat broke the Arab consensus and made peace with Israel. Though the rulers of Syria have, to date, preferred the continuance of belligerency to a similar decision to end the conflict, the question of their right to the return of the Golan in the event of peace seems to hinge more on the nature of the regime in Damascus than any dispute about the provenance of Syria’s title to the land.

The question of the legal status of the West Bank, as well as Jerusalem, is not so easily resolved. To understand why this is the case, we must first revisit the history of the region in the 20th century.

Though routinely referred to nowadays as “Palestinian” land, at no point in history has Jerusalem or the West Bank been under Palestinian Arab sovereignty in any sense of the term. For several hundred years leading up to World War I, all of Israel, the Kingdom of Jordan, and the putative state of Palestine were merely provinces of the Ottoman Empire. After British-led Allied troops routed the Turks from the country in 1917-18, the League of Nations blessed Britain’s occupation with a document that gave the British conditional control granted under a mandate. It empowered Britain to facilitate the creation of a “Jewish National Home” while respecting the rights of the native Arab population. British Colonial Secretary Winston Churchill later partitioned the mandate in 1922 and gave the East Bank of the Jordan to his country’s Hashemite Arab allies, who created the Kingdom of Jordan there under British tutelage.

Following World War II, the League of Nations’ successor, the United Nations, voted in November 1947 to partition the remaining portion of the land into Arab and Jewish states. While the Jews accepted partition, the Arabs did not, and after the British decamped in May 1948, Jordan joined with four other Arab countries to invade the fledgling Jewish state on the first day of its existence. Though Israel survived the onslaught, the fighting left the Jordanians in control of what would come to be known as the West Bank as well as approximately half of Jerusalem, including the Old City. Those Jewish communities in the West Bank that had existed prior to the Arab invasion were demolished, as was the Jewish quarter of the Old City of Jerusalem.

After the cease-fire that ended Israel’s War of Independence in 1948, Jordan annexed both the West Bank and East Jerusalem. But, as was the case when Israel annexed those same parts of the ancient city that it would win back 19 years later, the world largely ignored this attempt to legitimize Jordan’s presence. Only Jordan’s allies Britain and Pakistan recognized its claims of sovereignty. After King Hussein’s disastrous decision to ally himself with Egypt’s Nasser during the prelude to June 1967, Jordan was evicted from the lands it had won in 1948.

This left open the question of the sovereign authority over the West Bank. The legal vacuum in which Israel operated in the West Bank after 1967 was exacerbated by Jordan’s subsequent stubborn refusal to engage in talks about the future of these territories. King Hussein was initially deterred from dealing with the issue by the three “no’s” of Khartoum. Soon enough, he was taught a real-world lesson by the Palestine Liberation Organization, which fomented a bloody civil war against him and his regime in 1970. With the open support of Israel, Hussein survived that threat to his throne, but his desire to reduce rather than enlarge the Palestinian population in his kingdom ultimately led him to disavow any further claim to the lands he had lost in 1967. Eventually, this stance was formalized on July 31, 1988.

Thus, if the charge that Israel’s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordan’s renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six-Day War, argued that the West Bank should be considered “unallocated territory,” once part of the Ottoman Empire. From this perspective, Israel, rather than simply “a belligerent occupant,” had the status of a “claimant to the territory.”

To Rostow, “Jews have a right to settle in it under the Mandate,” a right he declared to be “unchallengeable as a matter of law.” In accord with these views, Israel has historically characterized the West Bank as “disputed territory” (although some senior government officials have more recently begun to use the term “occupied territory”).

Because neither Great Britain, as the former trustee under the League of Nations mandate, nor the since deceased Ottoman Empire—the former sovereigns prior to the Jordanians—is desirous or capable of standing up as the injured party to put Israel in the dock, we must therefore ask: On what points of law does the case against Israel stand?


International-law arguments against the settlements have rested primarily upon two sources. First are the 1907 Hague Regulations, whose provisions are primarily designed to protect the interests of a temporarily ousted sovereign in the context of a short-term occupation. Second is the 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime.

While Israel was not and is not a party to the Hague Regulations, the Israeli Supreme Court has generally regarded its provisions as part of customary international law (that is, law generally observed by nations even if they have not signed an international agreement to that effect) and hence applicable to Israel. The regulations are transparently geared toward short-term occupations during which a peace treaty is negotiated between the victorious and defeated nations. The “no’s” of Khartoum signaled that there would be no quick negotiations.

Nonetheless, Israel established and maintains a military administration overseeing the West Bank in accordance with the Hague Regulations, probably the only military power since World War II other than the United States (in Iraq) that has done so. For example, consistent with Article 43 of the Regulations, which calls on the occupant to “respect, . . . unless absolutely prevented, the laws in force in the country,” Israel has for the most part continued to follow Jordanian law in the West Bank, despite its position that Jordan itself had illegally occupied it. Israel’s stance has been criticized as contradictory, but general continuance of Jordanian law can be justified on grounds of legal stability and long-term reliance reflected in most legal systems, including international law.

Article 46 of the Hague Regulations bars an occupying power from confiscating private property. And it is on this point that the loudest cries against the settlements have been based. Israel did requisition land from private Arab owners to establish some early settlements, but requisitioning differs from confiscation (compensation is paid for use of the land), and the establishment of these settlements was based on military necessity. In a 1979 case, Ayyub v. Minister of Defense, the Israeli Supreme Court considered whether military authorities could requisition private property for a civilian settlement, Beth El, on proof of military necessity. The theoretical and, in that specific case, actual answers were affirmative. But in another seminal decision the same year, Dwaikat v. Israel, known as the Elon Moreh case, the court more deeply explored the definition of military necessity and rejected the tendered evidence in that case because the military had only later acquiesced in the establishment of the Elon Moreh settlement by its inhabitants. The court’s decision effectively precluded further requisitioning of Palestinian privately held land for civilian settlements.

After the Elon Moreh case, all Israeli settlements legally authorized by the Israeli Military Administration (a category that, by definition, excludes “illegal outposts” constructed without prior authorization or subsequent acceptance) have been constructed either on lands that Israel characterizes as state-owned or “public” or, in a small minority of cases, on land purchased by Jews from Arabs after 1967. The term “public land” includes uncultivated rural land not registered in anyone’s name and land owned by absentee owners, both categories of public land under Jordanian and Ottoman law. Inversely, the term excludes land registered in the name of someone other than an absentee owner (regardless of whether the land is presently cultivated), land to which a title deed exists (even if the deed is unregistered), and land held by prescriptive use. The last stipulation requires continuous use of the land for a period of 10 years.

Israel’s characterization of certain lands as “state” or “public” has provoked considerable controversy. In one of the most detailed and cited critiques, B’Tselem, the Israeli human-rights group, concedes that 90 percent of the settlements have been established on what is nominally “state” land but argues that approximately 40 percent of the West Bank now falls within that category. That would represent a vast expansion of the 16 percent of the West Bank that had been considered public under Jordanian control.

As B’Tselem acknowledges, however, the vast majority of this land is in the Jordan Valley, which, with the primary exception of the city of Jericho, was barely populated by Palestinian Arabs prior to 1967 (which explains why such land was both unregistered and uncultivated). The percentage may also be on the high side because of the inclusion of certain Jerusalem neighborhoods in B’Tselem’s calculations. Regardless of the gross percentage, according to B’Tselem’s own statistics, only approximately 5 percent of the West Bank is within settlement “municipal boundaries,” and a much, much smaller percentage of land, 1.7 percent, is developed.

One of B’Tselem’s most frequently cited publications argues that Ma’aleh Adumim, the largest Israeli settlement on the West Bank, several kilometers to the east of Jerusalem, sits on territory taken from five Palestinian Arab villages and therefore amounts to an expropriation. But because the villagers lack registered title or even unregistered deeds, B’Tselem argues that the nomadic Jahalin Bedouin, who intermittently camp and graze their livestock on land to the east of Jerusalem going down to the Dead Sea, have effectively earned the right of title to the land because of their prescriptive use.

Perhaps. But it is far from clear how a Bedouin right to the land has anything to do with the legal claim of Palestinian villagers 60 years earlier. B’Tselem offers this rather astonishing argument: “They grazed on village land in accordance with lease agreements (at times symbolic) with the landowners—including landowners from the villages of Abu Dis and al’Izariyyeh.” At times symbolic!

In other words, only Palestinian Arab villages may be constructed and expanded on the land because Bedouin have occasionally grazed their flocks thereon pursuant to the implied consent of Palestinian villagers. But those villagers only have a right to the land because of its use by the Bedouin!

The sophistry here masks a deeper issue. Aside from its circularity, B’Tselem’s argument equates whatever rights Bedouin may have with the rights of sedentary Arab villages on the outskirts of Jerusalem. The only reason for such an equation is that both are Arabs and not Jews. B’Tselem’s assertion that the land belongs to these villages collapses into the contention that only Arabs, not Jews, have the right to own and use these lands.


Settlement opponents more frequently cite the Fourth Geneva Convention these days for their legal arguments. They specifically charge that the settlements violate Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”

Frequently, this sentence is cited as if its meaning is transparent and its application to the establishment of Israeli settlements beyond dispute. Neither is the case.

To settlement opponents, the word “transfer” in Article 49(6) connotes that any transfer of the occupying power’s civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 complicates that case. It reads: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements with the antecedent permission or subsequent acquiescence by the occupant?

Even settlement opponents concede that many settlements closest to Palestinian population areas, on the central mountain range of the West Bank, were built without government permission and often contrary to governmental policy; their continued existence forced the government to recognize the settlement as an existing fact. Given this history, it is questionable to claim that Israel “transferred” those settlers.

The response of settlement critics is that certain tax subsidies and other benefits conferred by the Israeli government or the World Zionist Organization that may have encouraged Jews to settle in the West Bank constructively amounts to a “transfer.” This interpretation would have greater traction under a l977 protocol to the Geneva Convention or under the Treaty of Rome, which established the International Criminal Court, but Israel is a signatory to neither (both covenants were heavily influenced by anti-Israel nongovernmental organizations and the PLO).

To the extent that a violation of Article 49(6) depends upon the distinction between the voluntary and involuntary movement of people, the inclusion of “forcible” in Article 49(1) but not in 49(6) makes a different interpretation not only plausible but more credible. It’s a matter of simple grammar that when similar language is used in several different paragraphs of the same provision, modifying language is omitted in later paragraphs because the modifier is understood. To Julius Stone, an international-law scholar, “the word ‘transfer’ [in 49(6)] in itself implies that the movement is not voluntary on the part of the persons concerned, but a magisterial act of the state concerned.”

To understand the phraseology used in Article 49(1), “individual or mass forcible transfers,” as well as one plausible origin of Article 49(6), some background is necessary.

According to Stone, discussions at the 1949 Geneva Diplomatic Conference “were dominated . . . by a common horror of the evils caused by the recent World War and a determination to lessen the sufferings of war victims.” The various nations’ delegates considered a draft of the convention produced at a conference of the Red Cross Societies held in Stockholm during August 1948. Final Article 49 was the renumbered and revised successor to Article 45 of the Stockholm Draft.

At a legal subcommittee meeting at Stockholm seemingly attended by fewer than 10 active participants, a Danish Jew named Georg Cohn proposed the sentence, albeit with a wider scope, that became Article 49(6). Cohn’s initial sentence, in French, would have prohibited an occupying power from deporting or transferring a “part of its own inhabitants or the inhabitants of another territory which it occupies” into the occupied territory.

According to Cohn’s own report to the Danish foreign ministry, his language was directed at an event the aspects of which were little known outside Scandinavia. In the waning days of World War II, as the Russian military advanced westward through the Baltic states and the Germans retreated, the Germans rightly feared that the Russians would take retribution on all German citizens and ethnic Germans who had collaborated with the Nazis. The Germans evacuated more than 2 million people into boats, hoping to land them in northern Germany.

Many of the ports had been bombed, however, and the Germans began unloading the people wherever they could, including several hundred thousand people into Copenhagen. In the spring of 1945, German children comprised a majority of the pupils in Copenhagen’s schools. The Danes despised them and placed them in concentration camps after the war, waiting to deport them to Germany as fast as possible. That goal had still not been accomplished in August 1948, at the time of the Stockholm conference.


Cohn may also have been motivated to propose the language that later became Article 49(6) in light of his own strong Jewish identity. The original language on deportations presented to the Stockholm conference would not have prevented Germany from deporting its own Jews to slave and extermination camps in Poland and other occupied countries, nor would it have prevented the Germans from sending Danish Jews found in Germany to concentration camps in occupied territories, sending either Hungarian or Italian Jews to Auschwitz, and/or from transplanting Germans to portions of Poland and other occupied countries. Cohn’s original language would have criminalized all these practices.

Other participants in Stockholm, led by Albert J. Clattenburg Jr. of the United States, thought Cohn’s provision too broad. The phrase “or the inhabitants of another territory which it occupies” was deleted, and “civil” was inserted before “inhabitants.”

At the Geneva Conference itself, both the Final Report of the Committee charged with drafting the text of the 4th Convention for consideration by the delegates as well as comments by delegates generally differentiated between transfers that were voluntary and therefore permitted and those that were involuntary and therefore prohibited. As the Final Report to the delegates stated while explaining the differences between various articles dealing with the right of an occupying power to evacuate an area, primarily in the interest of the security of the civilian population’s security: “Although there was general unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of Article 45 caused some trouble. . . . In the end the Committee had decided on a wording that prohibits individual or mass forcible removals as well as deportations of protected persons from occupied territory to any other country, but which permits voluntary transfers.”

That is a key reason why Julius Stone termed the anti-settlement interpretation “an irony bordering on the absurd” and commented: “Ignoring the overall purpose of Article 49, which would inter alia protect the population of the State of Israel from being removed against their will into the occupied territory, it is now sought to be interpreted so as to impose on the Israel government a duty to prevent any Jewish individual from voluntarily taking up residence in that area.”

There is simply no comparison between the establishment and population of Israeli settlements and the Nazi atrocities that led to the Geneva Convention. The settlements are also a far cry from policies implemented by the Soviet Union in the late 1940s and early 1950s to alter the ethnic makeup of the Baltic states by initially deporting hundreds of thousands of people and encouraging Russian immigration.

Nor can they be compared to the efforts by China to alter the ethnic makeup of Tibet by forcibly scattering its native population and moving Chinese into Tibetan territory. Israel’s settlement policies are also not comparable to the campaign by Morocco to alter the ethnic makeup of the Western Sahara by transferring Moroccan Arabs to displace the native Saharans, who now huddle in refugee camps in Algeria, or to the variety of population displacements that occurred in the various parts of the former Yugoslavia.

All these would seem to fit the offense described in Article 49(6) precisely. Yet finding references to the application of Article 49(6) to nations other than Israel is like looking for a needle in a haystack. What distinguishes a system of “law” from arbitrary systems of control is that similar situations are handled alike. A system where legal principles are applied only when it suits the political tastes of anti-Israel elites is one that has lost all credibility. The loose use of international law, disproportionately applied to Israel, undermines the notion that this is “law” entitled to authoritative weight in the first place.

Julius Stone referred to the absurdity of considering the establishment of Israeli settlements as violating Article 49(6):

We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus 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 exclude so tyrannical a reading of Article 49(6).

Stone’s pointed critique of what has since become “accepted” wisdom invites a hypothetical: Suppose a group of Palestinian Arabs who are citizens of Israel requested permission to establish a community on the West Bank. Further, assume that Israel facilitated the community’s establishment, without the loss of their citizenship, on land purchased from other Palestinian Arabs (not citizens of Israel) or on state land. Would establishment of this settlement violate Article 49(6)? If not, how can one distinguish the hypothetical Arab settlements from Jewish settlements?

Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today’s Israeli settlements, for example, in Hebron and the Etzion bloc outside Jerusalem. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, as in the case of Hebron, the community’s population was slaughtered. Is it sensible to interpret Article 49 to bar the reconstitution of Jewish communities that were destroyed through aggression and slaughter? If so, the international law of occupation runs the risk of freezing one occupier’s conduct in place, no matter how unlawful.

The idea that the creation of new settlements or that the expansion of ones already in place is an act of bad faith on the part of various Israeli governments may seem without question to those who believe those settlements constitute an obstacle to the ever elusive solution to the Arab-Israeli conflict. Whether this argument is well-founded or not, the willingness of Israel’s critics to assert that these communities are not merely wrong-headed but a violation of international law escalates the debate over their existence from a dispute about policy into one in which the Jewish state itself can be labeled as an international outlaw. The ultimate end of the illicit effort to use international law to delegitimize the settlements is clear—it is the same argument used by Israel’s enemies to delegitimize the Jewish state entirely. Those who consider themselves friends of Israel but opponents of the settlement policy should carefully consider whether, in advancing these illegitimate and specious arguments, they will eventually be unable to resist the logic of the argument that says—falsely and without a shred of supporting evidence from international law itself—that Israel is illegitimate.

Preserving a legal inheritance: settlement rights in the "Occupied Palestinian Territories"

14 Sep 09
The fuller version of the article in the September 2009 Journal in response to Fraser Ritchie’s article of June 2009

by Gerald M Adler

1. Introduction
2. The land at Jayyous and its surroundings
3. Legal issues
a. Applying international law in the OPT
b. Substantive land law in the OPT
c. The Fence and the Green Line.
(i) Legal significance of the Green Line
(ii) Legal, political and security consequences
d. The legality of the Fence and restrictions on entry into the Seam Zone
e. Israeli civilian right of presence and settlement in the West Bank
(i) League of Nations Covenant 1920
(ii) San Remo Resolutions 1920
(iii) Treaty of Sèvres, 1920
(iv) Palestine Mandate, 1922
(v) UN Charter article 80
(vi) UN General Assembly Resolution 181
(vii) Israeli-Jordanian Armistice Agreement, April 1949
1. Introduction

Fraser Ritchie’s article “Unequal before the law” (Journal, June 2009, 22; for fuller version click here) purports to describe an adverse humanitarian situation prevailing in and around the Arab village of Jayyous, located in “Israeli occupied Palestinian Territory” on the West Bank (OPT) and situated close to the Jewish settlement of Zufin. He raises three separate legal issues from which he draws certain conclusions. However, when subjected to rigorous examination, these conclusions prove to be unsubstantiated or misinterpreted, resulting from errors and omissions of fact and law.

In setting the background to his investigations, Mr Ritchie states of his visit to Jayyous: “I was surprised by the degree of disregard for international law, humanitarian law, human rights and legal rights. Having experienced practice in Scotland in conveyancing and court, it seemed of interest (i) how land could be 'confiscated' by a state, and (ii) how a state could so ignore due process”.

Without giving his readers a clear description of the legal and factual context, Mr Ritchie concludes that:

(a) Israel manipulates and exploits the land legislation applicable in the OPT so as to bring under Israeli state control large tracts of undeveloped or uncultivated land. This operates to the detriment of the Palestinians, who, in his opinion, are entitled to have free and untrammelled access to such lands and to develop them;

(b) Once such land is repossessed by the state, it is used to (i) establish Israeli settlements; and (ii) accommodate the terrorist security barrier (the "Fence").

The reality is that while the injury and inconvenience caused to the Palestinians by Israel is to be regretted, their situation is much less severe than that which Mr Ritchie portrays.

Mr Ritchie's article omits to make even a single reference to the role and earlier judgments of the Israeli Supreme Court. Since 1967, it has opened its doors to receive petitions for redress submitted by Palestinians alleging personal injury and harm or damage to their property within the OPT, caused by arbitrary or illegal acts purportedly committed by the Israel Defence Forces ("IDF") or by other Israeli nationals acting in their official capacity. Many of these claims have been resolved in the Palestinians’ favour.

Further, in discussing the Fence, its construction, location and gates, and the damage and inconvenience caused to Palestinians by its presence, Mr Ritchie ignores

* the context in which Israel gained occupation of the West Bank;
* the reasons for the occupation continuing for so long; and
* the extent of the provocation which gave rise to the construction of the Fence in the first place.

2. The land at Jayyous and its surroundings

Mr Ritchie implies that land “taken from Jayyous” for the establishment of the nearby Jewish settlement of Zufin was improperly leased from the Israeli Custodian of Enemy Property. In fact, a very substantial parcel was acquired directly from its Arab owner in an arm’s length transaction for good consideration in accordance with the very registration process, discussed below, which Mr Ritchie denounces.

Amongst other facts of which Mr Ritchie is apparently unaware is the climate of intra-Palestinian duress and intimidation which befogs West Bank politics. Sadly, the vendor paid for the “crime” of selling land to a Jew. He was assassinated by fellow Palestinians.

He also omits to mention that in 2005, Jayyous petitioned Israel’s Supreme Court (HCJ 10905/05) for judicial review of the route of the Fence, 96% of which, overall is comprised of electronically wired fence construction and not a wall as is commonly described. Although the final decision is still pending, the Israel Defence Forces (“IDF”) have already conceded that the “warning distance” between the Fence and the nearest Jewish settlements could be reduced, thus returning some 500 acres of privately owned and 90 acres of “state” land to the Palestinian side.

The article states: “The Israeli separation barrier has isolated 78% on the west side within a distance of up to 6.5km from the 1949 internationally recognised armistice line known as the Green Line”.

The reality is different:

* In its present location, the percentage of land isolated from the village is approximately 60%. If the court accepts the IDF concession, this will fall to about 40%;
* The extent of the Fence’s penetration from the Green Line in the Jayyous area ranges from hundreds of metres’ distance to 3 km at most and not 6.5 km.

Mr Ritchie further states: “[i] In Jayyous there is land that still belongs to Jayyous farmers but which they can only access through a gate in the barrier, opened and shut by soldiers at specified times. [ii] The farmer must show a permit. [iii] Only 18% of people with land have permits. [iv] If the land is not farmed, due to absence of permit for whatever reason, it will be taken as state land under [Israel’s] interpretation of the Ottoman law.”

Three of these statements – i, iii and iv – are inaccurate both in fact and law.

(i) There are three gates and not just one. Two are open for three periods each day; the third remains open throughout daylight hours.

(ii) The Israeli Civil Administration issues an entry permit to all inhabitants possessing a sufficient interest in land within the restricted area. The probability is that only 18% of the population of Jayyous has land such as to justify a genuine need to gain entry.

(iii) As will be demonstrated immediately below, under Israel’s application of the Ottoman law, rather than in its interpretation, land classed as Miri (see below ) is not automatically "taken as state land" if it remains uncultivated.

Further, international law recognises the right of an occupying power to restrict freedom of movement and declare certain areas restricted, where necessary for orderly government and for the security of the occupying power.
3. Legal issues

Israel’s presence on the West Bank dates from the 1967 Six Day War. Taking the strategic pre-emptive defensive action consistent with UN Charter article 51, Israel repelled a planned armed attack by the united forces of Egypt, Syria and Jordan. Neither conventional nor customary international law requires Israel to withdraw from territory captured in a self-defence war until she and her opponents conclude a peace treaty. Although Israel’s relations with the Palestinians are temporarily governed to a considerable extent by the Agreement on Interim Self Government, 1995 ("Oslo II"), no final peace treaty has been concluded in respect of the OPT.
a. Applying international law in the OPT

In governing the OPT since 1967, Israel complies with international law. This demands that the occupying power:

* continue to apply “the laws in force within the territory immediately prior to the occupation” (article 43, Hague Regulations (“Hague”), and article 6(2) of the Fourth Geneva Convention (“Geneva IV”)); and
* “safeguard the capital of [state] properties, and administer them in accordance with the rules of usufruct” (Hague, article 55).

The British Mandatory Government introduced the statutory process of taking possession of immovable Ottoman state property by military order and transferring its management to the Custodian of Absentee and Enemy Property (the “Custodian”) in 1919. Jordan did likewise in 1948. The Israeli military commander, following the same procedure in 1967, imposed a duty on the Custodian to manage OPT state lands in accordance with the pre-existing land law.

In respect of private property, Israel adheres to Hague, article 52 and Geneva IV, article 53, which prohibit an occupying power from destroying or confiscating private property, except where such destruction is rendered necessary by military operations. Where there is a military need for the use of private property, the land is not confiscated – title thereto is not forfeited – but it may be requisitioned from the owner, who is entitled to receive compensation for its occupation and use. Such is the situation where Israel has erected parts of the Fence on private land.
b. Substantive land law in the OPT

Mr Ritchie alleges that “Israel says non-registered land in the OPT is public land”. Israel makes no such claim! The reverse is the case.

Mr Ritchie fails to differentiate non-registration of title to land from an individual’s ability to (a) acquire the right to cultivate Miri-type land (see below) by adverse possession; and also (b) bear the risk of loss of such right by failing to cultivate it according to law.

The substantive land laws applying in the West Bank are based principally on the 1858 Ottoman Land Code, amended by the British Mandate and Jordanian Governments under their respective jurisdictions. They have remained essentially unaltered under Israeli rule. Taken together, these laws regulate the acquisition, utilisation, disposition and registration of all types of landholding, including state owned land.

Ottoman land law recognises six classes of landholding, expressed in terms of its location, quality and potential use. In and around Jayyous, the land falls unevenly into four of these classes, the second of which is the most prevalent, and the most relevant for Mr Ritchie in his criticism of Israeli conduct:

(i) land used for public or general use of the inhabitants of a village, denominated as Metrukeh;

(ii) land located outside an urban area capable of cultivation - classified as Miri;

(iii) stony and broken land - being neither under cultivation nor capable of it - termed Mewat; and

(iv) land which has been abandoned and uncultivated for more than three years - termed Mahul or Waste land.

The state maintains a continuing legal interest in the last three types.

In respect of Miri, the law provides that the bare title (“rakva”) to such lands vests in the state (now represented by the IDF commander), from whom an individual can acquire rights of use (“te’tsaruf”) either by express grant from the state or by 10 years’ uninterrupted adverse possession.

Land registration during the Ottoman period provided only for registration of transactions in land, which were personal in nature and no guarantee of good title. The records were used to identify potential conscripts for compulsory military service and liability to contribute to and strengthen the government tax base. For the Ottoman administration, both the identity of the occupant and the intention that vacant or uncultivated land be brought into productive use had greater importance than an exact delineation of the land being transferred and the validity of its title.

The Ottoman law, which the British mandatory authority adopted, therefore encouraged the state to recover Miri land uncultivated without reasonable justification for three consecutive years and to resell it by public auction, again subject to the obligation to occupy and cultivate it.

For the British administration, close settlement on vacant or waste land and increasing the level of efficiency in utilisation of land then under cultivation took precedence. Only in urbanising areas did land title registration begin to be introduced. Comprehensive title registration based on land “settlement” did not exist outside the built-up areas. The settlement process was both extensive and expensive. It included cadastral surveying, measurement, initial boundary setting, public notification, quasi-judicial hearing, determination of objections and finally registration.

For the legal development of land to attract investment capital, title thereto has to be secure. To stimulate such investment, Jordan introduced the First Registration of Land Law, 1965. Despite this innovation, when Israel took control in 1967 only one third of the non-urban land in the West Bank had been “settled”, a situation which retarded its development.

It is at this juncture that Mr Ritchie misinterprets the purpose and application of the law as favouring the Israeli occupying administration.

An applicant for “first registration” must first provide proof of title! In the case of Miri land, a claimant by adverse possession must demonstrate that he or his immediate ancestors both occupied and cultivated the land continuously for a 10 year period without objection. If, however, Miri land ceases to be cultivated for three years, by law such land technically becomes vacant (mahlul) or waste land and reverts to the state.

After 1967, in order to determine which lands were Government owned in a practical and evidentiary manner, the IDF military commander exercised his authority to declare apparently abandoned or uncultivated land as reverting to the state. Subsequent to making such declaration, notice thereof is served on the leaders of the relevant village and is published in the civilian co-ordination and communication centres, giving a 45 day period within which opposition and objection may be submitted. After the expiration of this period, appeals may still be submitted if a delay can be justified.

Miri land is only declared to be state land after a very thorough examination of its uncultivated condition and confirmation that it has not been worked for a period even as long as 10 years, as against the strict legal requirement of three years.

Even if the land has not undergone first registration, a claimant may still possess a right of occupation, but, after having successfully completed the process, the weight of proof in support of his right is much greater. It was by undergoing this process that the Palestinian landowner was enabled to sell his land to the Jewish development company which built the settlement of Zufin.

Despite the hearsay anecdotal evidence in the book Palestinian Walks, on which Mr Ritchie relies, vacant and uncultivated Miri land in the OPT is neither declared as “state” land nor is it allocated to private developers or individuals, before a full investigation has been conducted.

Mr Ritchie fails to disclose that Israeli policy is flexible in the exercise of state rights to reclaim Miri land.

Neither the IDF nor Custodian implement the state’s right to recover uncultivated land strictly in accordance with the law; nor is it employed automatically against the Arab cultivators. IDF policy is flexible. Until either the state or the occupier/cultivator initiates some concrete intention to develop, Palestinian occupiers are permitted to resume cultivation – even after ceasing to do so for a number of years well in excess of the three year limitation period.

Although Israel has placed the burden of proof on the cultivator to show continuous use of state land that has been or is, in good faith, about to be certified by the Custodian as unoccupied or unworked, the cultivator can still pre-empt such a state declaration by initiating a “first registration” procedure. Alternatively, he can discharge the burden of proof imposed on him relatively easily by witness testimony and the very aerial surveys, described immediately following, which Mr Ritchie condemns.

Mr Ritchie alleges that “proof of non-cultivation was by aerial photographs when there were no crops in the ground”. Factually, he is wrong!

The photographs are based on the results of a longitudinal aerial survey initiated and undertaken in 1945 by the Palestine Mandatory Administration as the foundation for a study directed towards increasing the efficient utilisation of land under its jurisdiction. During the 19 years of Jordanian occupation, its Land Administration failed to update the survey and its utilisation was allowed to lapse. Only after the Six Day War did Israel resume the survey on a regular basis for its initial purpose – and it is updated regularly. The use of photos extracted from the survey to prove or dispute occupation and cultivation was neither initiated by Israel nor undertaken for the objective that Mr Ritchie claims.

Unworked Miri land does not automatically revert to the Jewish people.

In the event any particular parcel or tract of Miri is declared as being unoccupied or unworked, Mr Ritchie states, incorrectly, that it “‘reverts’ to those whom the Israeli state regards as rightful owners, the Jewish people, wherever they may be. Legally this is not sustainable”.

This conclusion is also wrong in law. The right of utilisation of any particular parcel of Miri land that remains undeveloped will not necessarily revert to the “Jewish people”, but to the state, be it Palestinian or Israeli, which ultimately gains jurisdiction in Final Status negotiations.
c. The Fence and the Green Line
i. Legal significance of the Green Line

Mr Ritchie rejects out of hand Israel’s claim that the Fence is required to provide security for its citizens. He states: “[Israel] could have legally constructed the barrier along the Green Line, but that would have defined the Israeli boundary and excluded the citizens of Zufin from ‘protection’. There are many Israeli settlements in the West Bank and Israel has built, or made plans to build, the barrier round as many as it can.”

The Green Line however does not constitute a generally recognised international boundary or border. The line is a ceasefire line agreed between Jordan and Israel in their 1949 Armistice Agreement:

“Its basic purpose is to delineate the lines beyond which the armed forces of the respective Parties shall not move” (article IV(2)).

The Agreement specifically states in article II(2) that “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” (emphasis added).

Only Britain and Pakistan recognised the line as an international boundary when Jordan purported to annex the West Bank in 1950. The Six Day War rendered the question largely moot.
ii. Legal, political and security consequences

From Israel’s perspective, construction of the Fence on the Green Line would have brought about unacceptable legal, political and security consequences:

(1) Legally, construction of the Fence on the Green Line would have been interpreted internationally as a waiver by Israel of the minimal security protection accorded to it under UNSC Resolution 242, passed after the Six Day War.

(2) Politically, location of the Fence on the Green Line would have pre-empted and foreclosed any negotiations with the Palestinians on at least three of the six topics specifically reserved for the Final Status Negotiations contemplated in the 1993 Oslo Accords: settlements, security arrangements and borders.

(3) As for security, the Green Line runs very unevenly through low lying ground. Mountains and hills dominate the valleys. Therefore, to provide the secure boundaries recognised by resolution 242, Israel must control the high ground in order to dominate the area, rather than have others dominate her.

The purpose of the Fence is to deter and delay easy Palestinian terrorist infiltration into Israeli territory and its civilian population centres. The route of the Fence and the nature of its construction are dictated by topography, the absence of natural or manmade obstacles between Israel and the OPT, the warning distance between Israeli and Palestinian population centres and other security considerations.

The location of the Fence on the “Green” ceasefire line would, therefore, have defeated the very security objectives which it is designed to achieve.

The construction of the Fence is not a political statement but a temporary security measure, it being composed mainly of wire, which can be removed with relative ease should circumstances permit. In determining the route of the Fence, a balance has to be struck between Israel’s security and Palestinian humanitarian considerations, taking into account the needs of those most affected by the Fence.

As will be demonstrated below, the decisions of Israel’s Supreme Court ensure that the IDF seeks to find an appropriate balance. The route of the Fence has already been changed in a number of instances in response to Palestinian complaints.
d. The legality of the Fence and restrictions on entry into the Seam Zone

(i) Mr Ritchie’s reliance on the opinion of the International Court of Justice (on the “illegality” of the “Wall”), as having binding effect, is questionable:

* The opinion rendered was “advisory” and not dispositive;
* Without giving reasons, the opinion peremptorily declared that Israel could not avail itself of the right of self-defence under UN Charter, article 51 against a non-state actor. However, the language of the article imposes no such limitation. Indeed the inherent customary law of self defence has been legitimately relied upon, even before the creation of the nation state, against marauders, bandits, and other warlike attackers emanating from beyond the territorial boundaries claimed by a nation or people. Since 9/11, the ICJ position has become untenable.
* The opinion failed to take into account Israel’s security considerations, based on hard evidence and subject to cross-examination. The ICJ virtually concluded that Israel’s action was politically motivated. A detailed examination of the facts would have shown the contrary.
* The opinion makes no reference to the security provisions of the Israel-PLO Interim Agreement of 1995 (Oslo II).

The legality of the Fence cannot be divorced from the peril and scale of the armed attacks directed indiscriminately at Israel’s civilian population before and after its construction. After the collapse of Final Status negotiations with the PLO in 2000, the Palestinians escalated their campaign of terror both in the OPT and within Israel. By April 2004, more than 780 terrorist attacks had been perpetrated within Israel and more than 8,200 in the OPT, costing 900 Israeli citizens their lives and causing over 6,000 to be severely injured.

Such was the scale of aggression that the situation could legitimately be classified as “armed attack” short of war. In these circumstances, the laws of war and of belligerent occupation expressed in Hague and Geneva IV have again become applicable as they were in 1967:

* Hague, article 43 requires the occupying power to take all the measures in its power to restore, and ensure, as far as possible, public order and safety.
* In so doing it may requisition private property for military needs (Hague, articles 46 and 52). Such needs would include the land upon which the Fence is constructed, in return for which the owners are entitled to compensation.
* If in the process of constructing the Fence it is absolutely necessary to destroy private property, such as by the removal of olive trees, Hague, article 52 and Geneva IV, article 53 permit such action. To minimise damage to local farmers, Israel has replanted over 90,000 trees in the area of the Fence and has tried, wherever possible, to utilise public land, in accordance with Hague, article 55.

(ii) The Fence also constitutes a legitimate measure under the security provisions contained in Oslo II.

(iii) As mentioned earlier, any Israeli or Palestinian is free to petition the Israeli Supreme Court for judicial review of IDF decisions on the line of the Fence, if he alleges this to be unreasonable or unconnected with any security objective. In responding to any order nisi issued against the IDF or the Israel Government, the former will be compelled to lead evidence proving:

* a rational connection between the route of the Fence and the goal of its construction as being necessarily military in its objectives and not political;
* the route chosen being the least injurious to the petitioner without sacrificing that defence objective; and
* the damage caused to the petitioner being proportionate to the anticipated security gain.

All three subtests must be satisfied simultaneously.

Since the commencement of construction of the Fence, over 150 applications have been submitted. Approximately 50% have been withdrawn and 38 remain to be decided. On the other side of the scale, since commencement of its construction in 2003, the Fence has directly reduced the number of successful attacks and consequent fatalities on Israel’s civilian population.
e. Israeli civilian right of presence and settlement in the West Bank

The declared objective of Mr Ritchie’s Quaker sponsor and that of EAPPI, the programme organiser, is to bring about the cessation of Israeli “occupation” in the West Bank. The real issue, which both they and Mr Ritchie avoid, is not opposition to the “occupation”, but Arab-Islamic opposition to any Jewish right of presence in the West Bank.

Israeli settlements in the OPT barely account for more than 2% of the land area captured in 1967. As a result of the IDF troop withdrawal in accordance with Oslo II, Fatah and Hamas – and not Israel – currently exercise personal jurisdiction over approximately 97% of the Arab population, as they do in respect of over 65% of the West Bank territory. In the failed Final Status negotiations of 2000, Israel offered to withdraw from approximately 97% of the OPT, making up the 3% balance in a land exchange.

Apart from Jewish neighbourhoods in East Jerusalem, the relatively small proportion of land in the West Bank utilised by settlers is located mainly on stony hilltops – state owned Mewat land incapable of being cultivated or developed without a large input of investment capital.

Mr Ritchie accepts uncritically the Palestinians’ claim that Israeli settlement activity following the 1967 occupation is contrary to international law and is therefore illegal. The claim is rooted in article 49(6) of Geneva IV: ”The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The objective of paragraph (6) was to prevent a practice adopted by Germany during the Second World War of the involuntary transfer of portions of its own population to occupied territory for political and racial reasons. Legal scholars disagree with the allegation that this provision was ever intended to mean a voluntary, non-coercive movement of a civilian population. The provision therefore does not provide the solid foundation which the Palestinian position claims.

Notwithstanding article 49(6), Israel has an independent legal claim to occupy, and settle in, the West Bank Territory, which can be traced through a number of international legal instruments, the most significant of which are:

(i) League of Nations Covenant 1920 formed part of the peace treaty negotiations following the conclusion of World War I. Article 22 deployed the Roman-Dutch legal concept of “mandate”, similar to the equity concept of a trust. It was anticipated that the mandate for a territory would reflect the stage of the development of the people, its geographical situation, economic conditions and other similar circumstances.

(ii) San Remo Resolutions 1920 continued the peace negotiations in respect of the disposition of the territories formerly held under Ottoman control. Purporting to act in accordance with article 22 of the Covenant, the Principal Allied Powers concluded, inter alia:

* Syria and Mesopotamia (Iraq) should be provisionally recognised as independent states, subject to the rendering of administrative advice and assistance by a Mandatory Power until such time as they might be able to stand alone; and
* separately, Palestine was to be entrusted to a Mandatory Power, yet to be selected, that would be “responsible for putting into effect the [Balfour] 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”.

Both Britain and the Allied Powers were cognisant of the fact that the Zionist Jews hoped that the homeland in Palestine would ultimately develop politically as an independent Jewish state. The Arab leadership on the other hand was divided on the matter at best, and opposed to it at worst. Consequently, the language expressed in the Declaration, and included in the Resolution quoted above, continued:

“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” (emphasis added).

Significant by its absence is the word “political” from the rights of the communities which were not to be prejudiced by the establishment of the Jewish homeland. Furthermore, these communities were not referred to as Arab but as “non-Jewish” religious (rather than ethnic) communities. This differentiation became even more apparent in the terms of the actual Mandate.

(iii) Treaty of Sèvres, 1920 gave expression to the San Remo Resolutions in the peace agreement concluded between the Allied Powers and the Government of Turkey then in power. Inter alia, it provided for the dissolution of the former Ottoman Empire, with Turkey ceding all rights of sovereignty over North Africa and Arab Asia. (This waiver was subsequently confirmed in the Treaty of Lausanne 1923, which replaced the unratified Treaty of Sèvres.) The Allied Powers’ dissolution and the politically artificial delineation of Middle Eastern territory laid the foundations of the present conflict between Jews and Arabs and between Israel and the Palestinians.

Thus there is a clear link between the act of renunciation of Turkish sovereignty over Palestine and its transfer to Britain – under the Mandate designed for putting into effect the establishment of a Jewish homeland, as expressed in the Balfour Declaration and the San Remo Resolutions.

(iv) Palestine Mandate, 1922 reiterates in its preamble the policy declared in the Balfour Declaration and acknowledges the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home there.

Article 6 of the Mandate imposes a positive obligation on the British Mandatory “to facilitate Jewish immigration under suitable conditions and shall encourage… close settlement by Jews on the land, including State lands and waste lands not required for public purposes”.

The obligation to facilitate Jewish immigration is supported by the provisions of article 7, which impose on the Mandatory a duty to enact a nationality law, “and to include therein provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine”.

The terms “Palestinian” and “Palestine” at this period (1922) were applied solely to Jews and their ancient homeland. Yasser Arafat’s "creation" of a separate "Palestinian" people out of the South Syrians (as they were known under Ottoman rule) did not occur until 1964.

While article 6 implies that Jews were to be allowed to settle anywhere in the mandated territory, article 25 empowered the Mandatory “to withhold the application of… such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions”.

This provision enabled the Mandatory Administration to confine the establishment of the Jewish homeland to territory lying cis-Jordan, while giving Arab-Palestinians and others the right of settlement and land acquisition in trans-Jordan and excluding the Jews therefrom.

That the drafters of the Mandate contemplated the realisation of a Jewish majority in cis-Jordan is supported by the recognition of the Jewish Agency in articles 4 and 11 as an active partner with the Mandatory Government in the stimulating of Jewish immigration and development of Palestine. By contrast, the presence in the mandate instrument of language protective of Arab and other non-Jewish interests appearing in the preamble, article 6, and particularly in article 9, would have been superfluous if the drafters had envisaged an eventual Arab sovereignty over a Jewish minority.

(v) UN Charter Article 80
This article provides in part: “Nothing in this Chapter [dealing with the establishment of Trusteeships and Trustee Agreements] shall be construed in or of itself to alter in any manner the rights whatsoever of… any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”

Mandates approved by the League did not, upon the League’s dissolution, fall automatically within the new Trustee system established under the UN Charter. Until a Trustee agreement concluded in accordance with article 77 replaces it, a Mandate and the rights of the beneficiaries under it remain intact. To the best of the author’s knowledge no such agreement in relation to Palestine was ever prepared in accordance with this Chapter, nor was one even considered. While Britain may have surrendered her obligations as Mandatory-Trustee in 1948, the Mandate itself did not lapse.

The Mandate has never been formally amended or repealed – nor can it be “wound up” so long as the beneficiary and an undistributed part of the corpus of the trust continue to exist. The Jewish people, as beneficiary, now represented by the state of Israel, appropriated part of the trust corpus lying to the west of the River Jordan, following the surrender by Britain of its obligations as Mandatory trustee in 1948 after the withdrawal of British troops. The legal right of sovereignty over that unappropriated portion of the West Bank formerly held under Jordanian control remains in abeyance and the right thereto is in dispute. Until this issue is resolved, the Jewish people still have a legal right of settlement in that territory.

(vi) UN General Assembly Resolution 181, which recommended a two-state partition of the West Bank, did not change the legal situation, having no dispositive effect and having been rejected by the Arab states. (It also contemplated that each nationality would have "expatriate" communities living within the other nationality's state, with rights of residence but not of citizenship.)

(vii) Israeli-Jordanian Armistice Agreement, April 1949
The inability of the UN to enforce UNGA Resolution 181 induced five Arab armies to launch a full scale war against the nascent state of Israel on the day immediately following the British withdrawal from Palestine. In the process, Egypt occupied the Gaza strip and Jordan occupied part of the land on the West Bank designated in UNGA 181 for the Palestinian-Arab state. Although under the proposed plan of partition Jerusalem was to be internationally governed under the auspices of the United Nations, Jordan also took control of Eastern Jerusalem, from which a large Jewish population was ejected, creating a Jewish refugee crisis to which little reference is ever made. Israel nevertheless succeeded in retaining the western part of the city.

A ceasefire between the belligerents was achieved by the United Nations and given legal effect in the respective Armistice Agreements.

As mentioned in Part 3(c) above ("The Fence and the Green Line"), articles II(2) and IV(2) of the Israeli-Jordanian Armistice Agreement make it quite clear that none of the Agreement’s terms has any impact on the ultimate question of sovereignty over the disputed area, and that the Green Line was specifically excluded from having any political significance. Israel’s legal claim to settle in the West Bank remains unchanged from that which prevailed before 1948 or afterwards.

Thus, Israel is perfectly entitled, as a matter of law, to permit the voluntary settlement of her population beyond the Green Line and to take such steps as the construction of the Fence, in order to protect her population on both sides of that line. Whether it is politically wise for Israel to allow her citizens to settle in that portion of the undistributed West Bank territory whose sovereignty is still in dispute is a different question.

A command of the above facts together with the legal analysis will hopefully allow Fraser Ritchie to reassess his stringent condemnation of Israel.
Professor Gerald M Adler, LLM, JSD (Yale) qualified as a barrister in Canada (Ontario), an advocate in Israel, and a solicitor in England & Wales. He taught law at the University of Western Ontario and the Israel Institute of Technology, Haifa. Inter alia, he also served as senior assistant to the Israeli Attorney General and as the Chief Legal Advisor to the Israel Electric Corp Ltd. Now retired from active practice, Dr Adler has spent the last five years researching “Legal Aspects of the Arab-Israel Conflict Within a Historical and Political Context”, part of which can be accessed on the internet.