By Ted Belman
I wrote to a couple Israeli lawyers asking them to answer these questions. The answers to these questions will give me a better understanding of what is going on in Area C. If anyone can answer them, please do.
Assuming the Fourth Geneva Convention applies, then, as I understand it pre-existing law applies. This law is an amalgam of Jordanian Law and Ottoman Law.
1. What are the rules to apply in order for someone to get the permanent right to cultivate the land
2. Do the same rules apply to Jews and Arabs?
3. Are they being equally enforced?
4. As I understand it there are three kinds of land, namely, State land, privately owned land where an Arab can prove his ownership and “private Palestinian land”. Please explain the latter. It sounds to me that our Court has created a trust for nameless Arabs whether or not they can prove ownership to it and that trust continues forever. I would imagine that some Arabs have title documents and other Arabs are able to prove possessory title. What are the rules for possessory title. Once established, is it a defence that they no longer possess it. In other words, must they do certain things periodically to keep their title.. Is possessory title a misnomer. Are we really taking about a license to use.5. I take it that our courts are competent to apply pre-existing law. Also, that the Civil Administration is competent to give permission for the construction of settlements. Now the Knesset is making all kinds of attempts to pass legislation which will affect the settlements. Where does it get the authority or jurisdiction to do so?
6. It would appear that the pre-existing law doesn’t allow completed dwellings to be torn down other than by court order. Under what principles does the Court operate to decide whether to issue a demolition order and are the same principles applied to Jews and Arabs.7. There is some talk about extending Israel law, which would be tantamount to annexation or annexing itself. According to occupation law, does Israel have the right to do such things. Similarly, did Israel have the right to annex lands to Jerusalem. It seems to me that to do so, Israel must take the position that the FGC does not apply even though the ICJ in the advisory opinion on the fence, said it did. If Israel did it without regard to international law and nobody recognized it, then what?
8. Under what law can the Court order the GOI to demolish it. In other words, why must the GOI follow orders from the Court.
I agree. Look up the work of Regavim
Ted Belman Said:
I want to add that my understanding is that Jews from outside Israel were to be allowed, encouraged and facilitated in settling west of the Jordan River. The UN and all the signatories to the relevant treaties, have an obligation under international law to facilitate the settlement of Jews west of the Jordan river and this includes non-Israelis. These rights and obligations precede the formation of the states and govts of Israel and Jordan and would be superior. I would think that the state and govt of Israel, as a member of the UN and its charter, has an obligation to facilitate the settlement of Israeli and non Israeli Jews west of the river. I know of no law or treaty that legally denies or ends these rights and obligations. The only treaty that could have any effect is that between Israel and Jordan and Egypt and I know no limitation which has superseded the prior rights and obligations in those treaties. Furthermore, if there were to be such superseding, then it brings into question Israel’s violation of its’ agency for “the jewish people” Why dont international Jewish organisations, right wing NGO’s bring suit against the govt of Israel, and the UN, on this issue. Mainly the govt of Israel because if one wins against Israel then that is all that is needed. Can a writ of mandamus be employed for Israel to observe these treaties and charters and force the GIT to facilitate the settlement of Jews? The left NGO’s are always bringing suit but the right either has no NGO’s or prefers to whinge and whine. Or is it that right wing govts believe they are being wily by not prosecuting these issues?
bernard ross Said:
Good question. It is one thing for our detractors to argue that Israel doesn’t have the right to indirectly transfer and quite another to argue that Jews don’t have a right to settle in J&S.
Does the israeli govt, or anyone, have the right to deny jewish settlement west of the Jordan river? Didn’t the San Remo treaty, the league of nations mandate trust(based on balfour declaration)and the UN’s obligation to fulfill the mandate trust as set out in the UN charter obligate the international community and all signatories to facilitate the settlement of Jews west of the Jordan river? I know of no subsequent treaties that have more force in international law or which deny or strike down that right. Why would the Israeli govt have the right to deny Jews settlement there? What about the violations against jews expelled from arab countries? Does the Israeli govt forego this as it has already decided on other methods and thus abdicated its agency for the jewish people?
Why dont the interested parties pursue their rights in fora other than Israeli if the Israeli govt violates these laws and agreements. Isnt there also a case that the Israeli govt is violating its agency of the Jewish people?
There is also the question that the creation of transjordan was a british violation of the mandate trust and deprived the sole beneficiary of that trust(the jewish people) of their rights of settlement in Jordan also.
I wrote two articles on the subject of “private Palestinian land”
In my opinion, after a war, the winning side decides if they wish to occupy and annex the territory in question.
“Israel must take the position that the FGC does not apply even though the ICJ in the advisory opinion on the fence, said it did. If Israel did it without regard to international law and nobody recognized it, then what?” Why would Geneva Conventions apply to the arab occupiers but did not apply to jews expelled from arab lands? In any legal action it will be the judges who will decide and the decisions will be based upon their politics: whether it be in Israel or the Hague. there are multiple legal principles which will allow israel to annex and to transfer the inhabitants as the completion of a de facto swap of populations. Most nations use “international law” as excuses to advance their interests, especially in war. Legal arguments are more of a tactic, an excuse. Many Jews adjudicate legality in forums and then never pursue them in courts or as a tactic because they have already “lost their case” in the courts of their minds. the first legal argument is that international law has guaranteed the rights of jews to settle west of the Jordan river, regardless of govt in power, and this law has never been struck down. Another principle involves precedents for population exchanges and transfers, another is damages for terror by nation states on the jews,another is the violation of the mandate trust by britain in creating trans jordan, etc,etc, etc. These cases do not need to be won but only to be quoted after seizing land , oil and assets of enemies. what does China and Russia do? The judge will be power and might.
This gets murky! There was some Israeli collusion on this. Israeli and Jordan had sort of an agreement on this; because neither side wanted The Nazi Mufti Hajj Amin al-Husseini running an independent Palestinian state.
Israel can get away with saying it was an Illegal Jordanian annexation because the Hussein will never admit that Abdullah I was colluding with Ben Gurion, but even such Israel Zionists as Dr. Arieh Eldad admitted it. (Click here)
The fact is: That the illegal annexation of the West Bank was agreed to by Israel and Jordan together; and Israel, sadly, is as much to blame as Jordan for it.
The other Arab states never trusted Abdullah I, and they were right.
Israel can get away with condemning Jordan only because the Jordanian monarchy will never publically admit their collusion with Ben Gurion. Nor does Israel like to admit that Begin, and the Likud, and Stern Gang publically denounced the partition as strongly as the Arabs did, though for different reasons.
If Israel condemns the annexation as illegal, she was party to it.
I do not like saying this, but it is true.
While Abdullah and Meir had a disagreement, in practice, his Army never went into the areas assigned to Israel, but confined their attacks to those areas assigned to the Palestinians. The agreement, though never signed, was unspoken, but quite effective.
If you assert that Jordan had no right to annex J&S, then you make it difficult for you to assert that Israel has the right to annex it. If annexation was illegal, it is illegal for both.
To that end; avoid the issue altogether. It is a no-brainer; and frankly immaterial to the point.
Israel has a historic right to J&S, but to bring up the Jordanian interlude is unnecessary and counter productive.
Israel’s right to the land is historical. If you make Israel’s right based on UN declarations, then you incriminate Israel.
From a layman with no legal background, it seems that the GOI should first assert its title to the land (state lands). Once this is done, the status of the various rights of individuals living on that land can be addressed more clearly.
I stand to be corrected on the above.
Here are some more questions about land ownership that you should ask the experts.
1. Land that can be privately owned is normally land that can be used, for example for housing, agriculture or pastures.
Most settlements were built on bare hill tops that were never used by Arabs for any purpose.
2. Can an Arab claim ownership to land in area C based on a claim that it was given to him by Hussein ?
Jordan’s ownership of this land was based on occupation and illegal annexation after a war of aggression !
Charles Oren
Givatayim