T. Belman. This makes for painful reading as it is a powerful refutation of the arguments advanced by the Right in support of our legal rights to the land. The author fails to deal with the result of Res 181 which was rejected by the Arabs. He does assert that rights aren’t fixed in time and can be over taken by events and time.
Unfortunately a strong argument such as laid out here would serve to weaken Netanyahu’s resolve to reject the two state solution.
By Nathaniel Berman, Brown University, TIKUN OLAM
I. Why Now?
The resurgence of debates about legality, particularly the legality of Israeli settlements in the West Bank, has become an unexpected feature of public discussion of Israel/Palestine over the past decade. This resurgence has been primarily the work of two kinds of forces.
On the one hand, pro-settler advocates have been asserting that the pervasive international view of the illegality of the settlements is simply wrong. Such advocates range from a 2012 Israeli government “Report on the Status of Building in the Region of Judea and Samaria” (the “Levy Commission Report”), to articles published in the right-wing press, to activists relentlessly advancing such views in social media. On the other hand, the illegality of the settlements has been vigorously asserted by those active in international campaigns critical of Israel, especially the BDS movement.
This article will primarily focus on the pro-settler use of the legality argument, evaluating its soundness and considering the contextual significance of its resurgence.
The revival of the legality debate is surprising because it seems, at first glance, at odds with current global developments. To be sure, there was a period, roughly between 1990 and 2003, when international debate about the use of force was pervaded with legal argumentation. In retrospect, it is astonishing how much of the debate about the Iraqi invasion of Kuwait in August, 1990 and the US-led military response in January, 1991, was framed in terms of legal argument. The decade that ensued was something of a golden era for public international lawyers. The conviction that the end of the Cold War meant that the international law governing the use of force could “finally” be implemented, that the Security Council could “finally” play the role for which it was intended, became quite widespread. Even as such hopes became tarnished as the decade continued – most egregiously by the international failure to stop the 1993 Rwanda genocide – international legal discourse remained a key shaper of world opinion about the use of force. Every intervention – or lack thereof – was accompanied by fierce debate about its legality. The 1999 NATO invasion of Kosovo, despite – or perhaps precisely because of – its questionable legality, produced volumes of creative legal discussion.
That period now seems long past, though it may not be possible to identify the precise moment of its demise. Kosovo played a role, as did the decision of the US not to seek Security Council approval for the invasion of Afghanistan. Nevertheless, both of these actions could be plausibly (if not uncontroversially) justified under longstanding doctrines (humanitarian intervention in the former case, self-defense in the latter). But it was the 2003 American invasion of Iraq, and the subsequent, if grudging, acquiescence to it by much of the world, that signaled that international norms about the use of force had lost their power to shape international policy. With the Russian invasion of Crimea in 2014, both of the erstwhile “superpowers” had firmly demonstrated their contempt for such international norms. To be sure, many condemned that invasion in terms of its blatant illegality, but such terms seemed out of touch with the new discursive character of international debate.’
In the Israel/Palestine conflict, legal debate has long played a central, if intermittent, role. While I cannot rehearse the entire history here, suffice it to say that the conflict has been decisively shaped by the debate over, and adoption of, such international instruments as the 1922 Mandate for Palestine, the 1947 Partition Resolution, the 1967 Security Council Resolution 242, and so on. But there have been periods when questions of legality seemed more or less irrelevant to ongoing political developments.
In my view, it was the 1993 Oslo agreements and their aftermath that largely encouraged the most recent (if temporary) sidelining of the core legal issues of the conflict, such as the legitimacy of the State of Israel, the right to self-determination of the Palestinian people, legality of the settlements, and so on. The twin recognitions of Israeli statehood and Palestinian peoplehood by Rabin and Arafat in 1993 promised to set aside zero-sum debates over rival, totalizing legal claims. In their stead, Oslo seemed (however briefly) to augur a focus on pragmatic adjustment of interests, the establishment of complementary Palestinian and Israeli societies, and the gradual oblivion of incommensurable claims over the land and its history.
The death of Oslo had both its sudden and gradual dimensions, with causes far too complex to discuss here. The second intifada sealed its demise – even though some of its formal structures persisted, and indeed continue to persist. Yet, this demise was not initially accompanied by a revival of the centrality of the legal debate. This was partly due to the accompanying violence: it seemed that neither legal principles nor pragmatic interests would henceforth be relevant, but only brute force.
However, as ever in this conflict, brute force has not decided matters, and zero-sum ideological battle has again become the order of the day: on one side, the de-legitimation of Israel as such; on the other side, the de-legitimation of any Palestinian claims to the land. Or, to use common shorthand: the advocates of a “one-state solution,” whether that state be Israel or Palestine, have seemed to be gaining the upper hand in shaping international debate, employing legal argumentation to advance irreconcilable claims.
What is the Law?
I turn to an overview of the legal issues relevant to the settlements, beginning with the basics. A full legal discussion would take an entire volume (or more); I have striven here to deal with the most central questions.
Israel is a State (in the international law, not the American, sense – i.e., an independent country). Its statehood has been recognized by most other States, and, most importantly, by its status as a Member State of the U.N. If any other State were to use force against its “territorial integrity or political independence …, or in any other manner inconsistent with the Purposes of the United Nations,” it would be violating Article 2(4) of the UN Charter, one of the most sacred norms of post-World War II international law. At a formal legal level, such issues as the “legitimacy” of Zionism, Jewish historical claims to the land, and so on, are simply irrelevant to the legal status of the State of Israel.
The Palestinians, for their part, have been recognized as a “people” with the right to “self-determination” by the U.N., most States, and the International Court of Justice [the “ICJ”, a.k.a, the “World Court”]. Under General Assembly Resolution 2625 (1970), most of whose norms are considered by international legal authority as binding, the right to self-determination can be implemented in one of three ways: “the establishment of a sovereign and independent State, the free association or integration with an independent State, or the emergence into any other political status determined by a people.” As a “people,” the Palestinians thus possess the right, as yet unimplemented, to choose one of these three options. There is a strong international preference that the right to self-determination be implemented through independent statehood, as expressed in state practice during decolonization and in General Assembly Resolution 1514 (1960), the predecessor to 2625 and the seminal document in the ripening of self-determination into a general international legal right.
The territorial dimension of Israeli statehood and Palestinian self-determination requires discussion of at least two additional legal issues. The first concerns the status of the “Green Line,” the border defining Israel under the 1949 Armistice Agreements between Israel and its neighbors, particularly Egypt and Jordan. The Agreements explicitly declared that they were not decisive as to the parties’ legal claims, including territorial claims. Nonetheless, the years after 1949 saw a growing international recognition, at least de facto, of the Green Line as the border of the State of Israel. The precise moment when this de facto recognition acquired legal stature may be hard to pinpoint, though it seems to have largely occurred. Thus, in its 2004 decision on the Israeli security wall, the ICJ implicitly assumed the de jure status of the Green Line – particularly in its proclamation that the Geneva Conventions’ provisions for occupied territories apply to “Palestinian territories … east of the Green Line,” implicitly declaring them inapplicable to territories west of the Green Line because they lay within the sovereign territory of Israel.
This statement by the ICJ brings us to the legal term, “occupation.” Recent pro-settler advocates insistently deny that this term can be applied to the West Bank. They contend that “occupation” only applies when territory is wrested by one sovereign State from another sovereign State. The West Bank has not had an internationally recognized sovereign since the long defunct Ottoman Empire. The British, who succeeded the Ottomans in ruling Palestine, were merely a “Mandatory Power,” a kind of trustee, administering the territory on behalf of the League of Nations. Jordan, which conquered the West Bank in the 1948 war, was widely condemned for its subsequent annexation – an annexation recognized formally only by Britain and perhaps, at an informal or de facto level, by the U.S. The annexation was initially condemned as illegal by the Arab League, which nearly expelled Jordan over the issue.
In 1968, Yehuda Blum, an Israeli international legal scholar and diplomat, offered what was perhaps the first, and most influential, legal argument for an Israeli claim to the West Bank: the theory of the “missing reversioner.” Under this theory, the full set of international rules governing “belligerent occupation” did not apply due to the absence of a legitimate prior sovereign to which the territory could “revert.” Blum, however, did not go so far as to deny that the term “belligerent occupation” applied. Rather, the “missing reversioner” meant that only those rules “intended to safeguard the humanitarian rights of the population” applied, and not those “protecting the reversionary rights of the legitimate sovereign.” Current proponents of the Israeli claim, however, have assertively taken the step from which Blum refrained: the denial of the very existence of an “occupation.”[1]
In any case, the relevance of the “missing reversioner” to the international law of occupation has been soundly rejected by the International Court of Justice in its 2004 decision (as well as by almost all other authorities), as I have noted above. The ICJ based its rejection on the purpose of the relevant provisions of the Geneva Conventions, the travaux preparatoires (records of discussions among the parties to the Conventions), subsequent confirmation by the views of the parties to the Conventions, and many Security Council resolutions – the standard methods used to determine the meaning of a treaty’s provisions. Moreover, as I show below, the Court’s declaration that all the Geneva Conventions provisions governing belligerent occupation apply to the West Bank is amply supported by the overall policies underlying those provisions, as well as other legal developments, above all the right of self-determination.
(I note that I do not have the space here to discuss the legality of the occupation as such, but only that of the legality of settlements in any occupied territory. A plausible argument could be made that the inception of the occupation was legal in 1967 as an exercise of the right of self-defense, but that, as Aeyal Gross has recently shown, the question remains as to whether it has become illegal due to the manner in which it has been conducted.[2])
The core argument for the illegality of the settlements is based on one of the primary goals of the rules governing belligerent occupation: the obligation of the occupier not to change the character of the occupied territory beyond that which is required by strict military necessity. This goal underlies the basic rule about occupation codified in Article 43 of the Hague Regulations of 1907: the requirement that the occupying State “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” This policy also informs the prohibitions on forcing the inhabitants to swear allegiance to the occupying State (art. 45) and on the confiscation of private property (art. 46), as well as the rules about public property: “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct” (art. 55). Articles 46 and 55 leave no land upon which an occupier could build any civilian settlement, let alone one of a permanent character.
To be sure, the 1907 Hague Regulations seem to assume the existence of a sovereign “reversioner” and to see the role of the occupying State as a kind of trustee for that sovereign until the negotiation of a peace treaty. The “missing reversioner” theory would declare all provisions informed by this assumption to be inapplicable to the West Bank. And, indeed, one might very well ask: for whom is the occupying State a trustee in the absence of a legitimate sovereign, for whom is it obligated to observe the rules of usufruct in relation to public property, on behalf of whom is it forbidden to impose its own legal framework – and, in general, whose rights is it supposed to safeguard?
The answer under current international law is clear: the beneficiary of all these rules is the population, or rather, “the people” of the occupied territory. Recall that even Blum affirmed that, in the absence of a legitimate prior sovereign, those rules designed to safeguard the “humanitarian rights of the population” are applicable to the West Bank, thus acknowledging that the absence of a “reversioner” did not entail the absence of a beneficiary of at least some of the rights granted by the law of occupation. To be sure, Blum distinguished between such “humanitarian rights” and political claims – the latter, under his theory, inapplicable by virtue of the absence of a legitimate prior sovereign. And Blum’s position would have been plausible in 1907.
But Blum’s distinction is no longer valid under current international law, due to the right of self-determination, recognizing the political rights of “peoples” not yet organized into a sovereign State, and the infusion of international law generally with the values it embodies. Under this recognition of the political rights of non-state peoples, the beneficiary of the trust-like status of occupied territory, in the absence of a legitimate prior sovereign, must be “the people” of the territory. It is on its behalf that the occupying State must govern the territory, refrain from unnecessary legal changes, safeguard public property, and so on.
The pro-settler (and indeed pro-annexation) argument – that the absence of a legitimate prior sovereign makes the territory available for appropriation by the occupier – thus completely ignores the gradual emergence into international law of the right of political self-determination. While the self-determination of peoples may have only fully ripened into a general international legal right after 1960, the principle informed much of the post-World War I redrawing of the boundaries of Europe. Woodrow Wilson gave it one of its earliest and most eloquent formulations in his 1918 “Four Principles” speech, when he declared that “peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game” – a principle which runs directly counter to the “missing reversioner” theory.
Indeed, the concept of pre-20th century international law that the right of self-determination directly rejects is the close ancestor of the “missing reversioner” theory: that of “terra nullius,” land that belongs to no one and therefore available for appropriation. This notion had a long and ignoble career in the history of imperialism, whose phases were sketched by ICJ Judge Ammoun in the 1975 Western Sahara Case:
(1) Roman antiquity, when any territory which was not Roman was nullius.
(2) The epoch of the great discoveries of the sixteenth and seventeenth centuries, during which any territory not belonging to a Christian sovereign was nullius.
(3) The nineteenth century, during which any territory which did not belong to a so-called civilized State was nullius.
The ICJ thoroughly rejected the notion of terra nullius in the Western Sahara Case, declaring that “territories inhabited by tribes or peoples having a social and political organization” cannot be regarded legally as terrae nullius. Since all “tribes” and “peoples” have “social and political organization,” the Court effectively declared that only uninhabited territory could possibly be nullius. The “acquisition of sovereignty” over any inhabited territory, therefore, cannot be “effected unilaterally through ‘occupation’” but, rather only through “agreements concluded with local rulers,” whether or not such local rulers were the representatives of States.
I now turn to the key legal rule specifically governing settlements, Article 49(6) of the Fourth Geneva Convention: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The meaning of this provision has been fiercely contested in the West Bank context. Pro-settler advocates argue that it refers only to forcible transfers of population, and relate it to the mass Nazi deportations to concentration camps. This interpretation treats the two terms, “deport” and “transfer” as synonymous. The authoritative 1958 commentary on the Geneva Conventions by the International Committee of the Red Cross [“ICRC”], however, gives a very different reading:
It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.
In the words of the ICJ in 2004, the provision prohibits “not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.” This interpretation, endorsed by the ICRC, the ICJ, and most international lawyers, is consistent with the overall policy framework of the law of occupation, which is that the occupying State must refrain from taking steps to change the character of the occupied territory – and attempts to alter its demographic character through settlements, and a fortiori any unilateral steps toward annexation, run directly counter to that policy.
III. What about San Remo?
One of the most surprising features of recent pro-settler legal argumentation is its preoccupation with three, nearly century-old, texts culminating in the establishment of the League of Nations Mandate for Palestine: the Balfour Declaration (1917), the San Remo Resolution (1920), and the Mandate for Palestine (1922). These documents are of variable legal significance. The British Balfour Declaration, which “view[ed] with favor the establishment in Palestine of a national home for the Jewish people,” was a unilateral declaration of policy by a State engaged at that time in a military struggle for the control of Palestine. Standing alone, it had no international legal significance.
The San Remo Resolution was an agreement between four States (Britain, France, Italy, and Japan), declaring their intention to accept certain terms to be incorporated in the Mandates for Palestine, Syria (apparently including Lebanon), and Mesopotamia (soon to be called Iraq). The four States agreed that the Mandate for Palestine would be granted to Britain which would be “responsible for putting into effect the [Balfour] Declaration.” Again, the Resolution was a statement of policy by four States, but had no independent legal significance. Finally, the Mandate for Palestine, a binding international treaty between Britain and the League of Nations, adopted the Balfour Declaration in its preamble and provided for a number of detailed provisions for its implementation. Of these texts, only the Mandate, an international treaty, was legally binding – making the current emphasis by pro-settler advocates on the Balfour Declaration and the San Remo Resolution rather inexplicable from a legal point of view.
In any case, even the Mandate has lost all current legal relevance. The Mandate and its precursor texts were written in a radically different time, before a vast array of radical factual and legal changes in the international and regional situation. Above all, these texts were adopted before the establishment of the internationally recognized State of Israel. The establishment of the State did more than fulfill the goal of the “establishment in Palestine of a national home for the Jewish people”: it over-fulfilled it – since the vague term “national home,” a term with no precise legal meaning in 1917 or any prior or subsequent time, was chosen precisely to avoid promising Jewish statehood. A comparison of the Palestine Mandate with all other post-World War I treaties make this clear: when the intention was to guarantee independent statehood to peoples, the texts said so explicitly.
One could quibble further about the language of the Balfour Declaration (for example, it seems to promise only that the “national home for the Jewish people” will be somewhere “in Palestine,” rather than providing for the constitution of Palestine as a whole as a Jewish national home). However, the establishment of the State of Israel, with its over-fulfillment of the “national home” policy, suffices to render the related provisions of the Mandate obsolete. Under a long-established rule governing international treaties, “rebus sic stantibus,” a “fundamental change of circumstances” that alters the basic conditions under which treaty provisions were adopted nullifies their binding character.
Two other provisions are often mentioned by pro-settler advocates. The first is the provision in the Mandate calling for Britain to “encourage … close settlement by Jews on the land.” Again, with the lapse of all the “national home” provisions by operation of rebus sic stantibus, this provision, too, is obsolete. Indeed, the establishment of an internationally recognized State of Israel renders the obligation of a foreign Mandatory Power to “encourage … close settlement” a bit absurd.
The second provision is Article 80 of the U.N. Charter. Article 80 is part of Chapter XII of the Charter, providing for the establishment of an International Trusteeship System to replace the League of Nations Mandates. Article 80 provides that “nothing in” Chapter XII “shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments.” Pro-settler advocates, drawing on an article written by Eugene Rostow in 1978, view this provision as maintaining all the provisions of the Palestine Mandate in relation to any part of the territory that has not been “allocated” – a term they use to mean territory not yet granted to an internationally recognized sovereign.
This argument fails on at least two grounds. First, the operation of rebus sic stantibus, rendering obsolete the Mandate’s Jewish national home provisions, is not a result of Chapter XII, and thus the restrictions of Article 80 are simply not pertinent. Second, the ripening of self-determination into an international legal right has not only changed the legal situation (reinforcing the rebus sic stantibus argument) but also signifies that the territory cannot be considered “unallocated” simply because there is no recognized sovereignty over it. In any case, all such arguments have been implicitly rejected by the ICJ, almost all international lawyers, and the international community of States.
IV. What about Resolution 242?
Another old debate which pro-settler advocates have resurrected concerns the meaning of Security Council Resolution 242, adopted in November, 1967. Among other things, the resolution calls for “withdrawal of Israel armed forces from territories occupied” during the Six Day War. Pro-settler advocates argue that the absence of a definite article before the word “territories” signifies that the resolution did not require Israel to withdraw from all the territories occupied during the war and that this provision could be fulfilled by withdrawal from any of the occupied territories – for example, by the withdrawal from Sinai under the 1979 Camp David Accords. Such arguments often involve comparison of the French and English texts, fine points of English and French grammar, and statements by various people involved in drafting the resolution. The pro-settler advocates also argue that the resolution thus legitimates Israeli settlements.
These arguments are rather baffling. Even if the grammatical point is correct (which is by no means certain), the resolution must be interpreted in light of general international legal rules about occupied territory. Under these rules, territory occupied during war cannot be unilaterally annexed. This prohibition is, indeed, stated in Resolution 242 itself, whose second preambular paragraph “Emphasiz[es] the inadmissibility of the acquisition of territory by war…”. Even if the pro-settler interpretation of “territories” is correct, the resolution would simply be stating that in a negotiated resolution of the conflict, the parties would be free to consent to changes to the pre-war boundaries. This reading renders compatible the second preambular paragraph and the (controversial) interpretation of the word “territories.” I also note that the resolution makes no mention of settlements at all.
In any case, the resolution must be interpreted in light of later legal developments, above all, by the near-universal recognition of the Palestinians as a “people” with a right to self-determination. The resolution makes no mention of Palestinians, who appear only as anonymous “refugees.” [WHY SO?]
IV. What about Howard Grief?
One of the frustrating features of the pro-settler legality arguments is their seeming indifference to the basic rules governing the determination of the state of international law. They repeatedly point to the existence of a small number of legal writers who have argued for the legality of the settlements, ignoring the thousands who have held the contrary view, as well as the authoritative decision-makers who have also so held (almost all States, the U.N., the ICJ, the ICRC, etc.). They argue for the superiority of the arguments of their chosen writers and contend that, at the very least, the issue is “disputed” and that illegality cannot be viewed as conclusively established.
The pro-settlement legal writers cited are a heterogeneous group – they include some recognized international lawyers, as well as legal scholars in other fields who dabbled to some extent in international law; the careers of some included official Israeli government positions. One of the latter prominently mentioned by pro-settler advocates is Howard Grief, an otherwise obscure Canadian-born lawyer who advised a cabinet minister during the Shamir government, who seems to be responsible for their obsession with the San Remo Resolution. Almost all are individuals clearly identified with the right-wing or even far-right of the political spectrum – including Howard Grief, whose petition to the Israeli Supreme Court to declare the illegality of the Oslo Accords was summarily dismissed as “a political position.”
Whatever the variable credentials of this group, ad hominem arguments are beside the point. International law is not a natural science in which something may be objectively true even if the vast majority of authorities fail to recognize it as such. Nor is it a moral inquiry in which (at least according to some moral theories) a value may be superior to others despite majority thinking. Nor is it concerned with a religious inquiry into the divine intent of a holy scripture. On the contrary, international law defines itself as concerned with consent of States, consensus or near-consensus of scholars, and authoritative institutional interpretations of texts. According to the widely accepted categorization (codified, among other places, in the Statute of the International Court of Justice), the sources of international law are: 1) treaties ratified by states; 2) “customary international law” – widespread State practices that “ripen” into legal rules by virtue of their acceptance as such by most States (the latter known by the Latin phrase, “opinio juris”); and 3) “general principles of law” – principles of the domestic law of States that are so widespread they become transformed into international legal rules.
Moreover, since many of the disagreements here concern the interpretation of treaties, we should note that the principle governing the formation of customary international law – which may be summarized in the formula, “practice + opinio juris” – reappears in only slightly different form in relation to the interpretation of potentially ambiguous legal texts. As stated in the Vienna Convention on the Law of Treaties:
There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
The contention of the wrongness of the overwhelming consensus about the illegality of settlements – shared by States, Courts, and the vast majority of international lawyers – thus misunderstands the nature of international law. One may, of course, oppose international law in whole or in part. But to treat it as though it had a timeless truth, which a lone observer or small group of observers could discover independently of such a consensus is simply a misunderstanding.
V. The Debate as a Tragic Symptom … and One Last Canard
As I noted at the outset, my general view is that this strange resurgence of the legal debate is a symptom of a growing loss of faith in a possible resolution of the conflict within a framework that would give at least partial expression to each of the competing nationalist aspirations. But it also reflects an even more disturbing phenomenon. As many observers have pointed out for years, the two-state solution – which still seems to many, including me, to provide the only framework that could plausibly bring about a peaceful and just resolution of the conflict – is belied by a “one-state reality” for which it serves as an alibi. Moreover, as the occupation looks ever-increasingly permanent, the legal category begins to look increasingly detached from reality, because permanence is the very condition the legal rules intend to obviate. And, yet, for all the reasons pointed out above, once “occupation” becomes obsolete, the alternative is not legitimate Israeli sovereignty over the West Bank, as the pro-settler advocates claim. Rather, it can only be replaced by terms like “colonialism” and “apartheid,” historical categories that describe systems of governance in which settlers and the majority population are governed by two legal systems, and in which only the former have citizenship and civil and political rights. In the context of a “one-state reality,” the campaign against the applicability of the legal descriptor “occupation” is thus chilling indeed.
One last, unpleasant canard must be mentioned here. Pro-settler advocates contend that those who think all settlements must be evacuated are calling for the West Bank to be “judenrein,” thus associating opponents of settlements with Nazis. This is wrong, indeed obscene, on so many grounds, and in so many ways, that another essay would be required to express them all. Since my focus here is on international law, I limit myself to one point only.
The settlement project may not be honestly described as the effort by individual Jews to rent or purchase homes and whose rights to do so should be protected by something like anti-discrimination law. The settlement project involves the collective movement of portions of the civilian population of a State into territory under military occupation by that State. The project was initiated and remains directed by governmental and non-governmental leaders whose declared intention was, and is, to facilitate the eventual imposition of Israeli sovereignty over the territory in whole or in part. The project was largely (though not exclusively) initiated, and remains largely led, by those guided by a nationalist-messianist ideology, which views the retention of the land by the State of Israel and/or the Jewish people to be mandated by divine will. The project is maintained with the backing of the full might of the Israeli military and by massive governmental expenditure on housing and infrastructure.
In short: the core legal issues do not concern housing discrimination or private property – and even less the moral evaluation of individual settlers. If some settlers are violent and racist extremists, and many simply indifferent to the human reality of Palestinians as individuals and as a people, others are ordinary families drawn to the West Bank by governmental economic incentives, some are apolitical spiritual exemplars, and there are even a few, like the late Rabbi Menachem Froman, who are genuine peace-seekers. The legal issues concern the actions of a State bound by international rules governing territory occupied during armed conflict, rules that prohibit moves toward the unilateral imposition of sovereignty on such territory and subordination of its population, of which the settlement project is the most flagrant form.
Nathaniel Berman is the Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture at the Cogut Center for the Humanities at Brown University. He is the author of Passion and Ambivalence: Colonialism, Nationalism, and International Law (Brill, 2011)
[1] One should also note that subsequent writings by Blum, published after Oslo, suggest that he no longer maintains the relevance of the theory he advanced in 1968.
[2] Aeyal Gross, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge, 2017).
Anyway, what else to expect from Rabbi Lerner and his garbage Tikkun mag?
RESEND
I am not a legal expert, but have read much on international law in regard to Israel (e.g. Allan Gerson, Howard Grief and many others).
In my opinion, this author’s entire argument is predicated on two points; 1) that the “Palestinians” are a people and as such are entitled to self-determination (e.g. Statehood) and 2) that the “Green Line” which was just an armistice line has defacto” been recognized as the legal border.
I assume it can be construed that Israel’s careless recognition of the “Palestinian People” under Oslo has given the status of a “People” with a right to self-determination (somewhere) to what are merely just Arab invaders.
However, having read much on the topic of self-determination, it is my understanding that “Self-determination” in the UN era is only a vehicle of the decolonization movement and refers specifically and only to European colonization of non-European peoples and lands. In other words, “A People” in the context of those deserving of self-determination does not refer to generally to all minorities nor to indigenous people. To this day those deserving of self-determination remains ambiguous.
In fact, the Declaration on Minorities intentionally avoids the right to self-determination and in Article 8.4 strongly insists that nothing in the declaration should interfere with states’ territorial integrity.
Thus, if the “Palestinians” are a people, they would be a minority people at best. Certainly, they are not a colonized people, especially in the sense of the term in the UN era.
As such, for a non-colonized people, it should not be possible for the ICJ or whomever to change the status of an armisitice line. More so, as I understand it, an armistice line can only be changed by treaty.
Similarly, for a non-colonized people, it should not be possible to alter the territorial integrity of the Jewish state, legally which includes J&S.
RESEND
I am not a legal expert, but have read much on international law in regard to Israel (e.g. Allan Gerson, Howard Grief and many others).
In my opinion, this author’s entire argument is predicated on two points; 1) that the “Palestinians” are a people and as such are entitled to self-determination (e.g. Statehood) and 2) that the “Green Line” which was just an armistice line has De-facto” been recognized as the legal border.
I assume it can be construed that Israel’s careless recognition of the “Palestinian People” under Oslo has given the status of a People with a right to self-determination (somewhere) to what are merely Arab invaders.
However, having read much on the topic of self-determination it is my understanding that “Self-determination” in the UN era is only a vehicle of the decolonisation movement and refers specifically and only to European colonization of non-European peoples and lands. In other words, “A People” does not refer to minorities nor to indigenous people and to this day remains ambiguous.
In fact, the Declaration on Minorities intentionally avoids the right to self-determination and in Article 8.4 strongly insists that nothing in the declaration should interfere with states’ territorial integrity.
Thus, if the “Palestinians” are a people, they would be a minority people at best. Certainly, they are not a colonized people, especially in the sense of the term in the UN era.
As such, for a non-colonized people, it should not be possible for the ICJ or whomever to change the status of an armisitice line. More so, as I understand it, an armistice line can only be changed by treaty.
Similarly, for a non-colonized people, it should not be possible to alter the territorial integrity of the Jewish state, legally which includes J&S.
I am not a legal expert, but have read much on international law in regard to Israel (e.g. Allan Gerson, Howard Grief and many others).
In my opinion, this author’s entire argument is predicated on two points; 1) that the “Palestinians” are a people and as such are entitled to self-determination (e.g. Statehood) and 2) that the “Green Line” which was just an armistice line has De-facto” been recognized as the legal border.
It does seem that Israel’s careless recognition of the “Palestinian People” under Oslo has given what where merely Arabs the status of a People with a right to self-determination (somewhere)?
However, I don’t see how the “Palestinian” people (if that is what they can legally be considered as a result of Oslo) have a right to our land, especially since Israel is the Legal Sovereign of Judea & Samaria. How is it possible for the ICJ or whomever to change the status of an armisitice line, which as I understand can only be changed by treaty?
BEN-GURION’S DECLARATION ON THE EXCLUSIVE AND INALIENABLE JEWISH RIGHT TO THE WHOLE OF
THE LAND OF ISRAEL:
at the Basle Session of the 20th Zionist Congress at Zurich(1937)
No Jew has the right to yield the rights of the Jewish People in Israel –
David Ben Gurion
(David Ben-Gurion was the first Prime Minister of Israel and widely hailed as the State’s main founder).
“No Jew has the right to yield the rights of the Jewish People in Israel.
No Jew has the authority to do so.
No Jewish body has the authority to do so.
Not even the entire Jewish People alive today has the right to yield any part of Israel.
It is the right of the Jewish People over the generations, a right that under
no conditions can be cancelled.
Even if Jews during a specific period proclaim they are relinquishing this right, they have neither the power nor the authority to deny it to future generations.
No concession of this type is binding or obligates the Jewish People. Our right to the country – the entire country – exists as an eternal right, and we shall not yield this historic right until its full and complete redemption is realized.”
(David Ben Gurion, Zionist Congress, Basel, Switzerland, 1937.)
“No country in the world exists today by virtue of its ‘right’.
All countries exist today by virtue of their ability to defend themselves against those who seek their destruction
If Israel has no right to exist, what is The U.S. of America’s right to exist? Why has the new Arab state Jordan has a right to exist?
Both countries give the same answer: refugees and settlers from around the world came to our land and built up a nation over more than a century, making major sacrifices in blood and toil to establish a new nation based on shared ideas rather than long-time indigenous residence. If anything, Israel’s claim to legitimacy is MUCH stronger and indisputable than the US claim for three reasons:
1) No one claims that the Brits (and others) who settled North America were coming back to an ancestral homeland.
2) No international organization ever recognized their right to that homeland, As the Faisal Weizmann Agreement of January 1919 and as the San Remo Conference of April 1920 implemented by the League of Nations did for Israel in 1923 and the United Nations did confirm the 1920 international agreement in 1947.
3) No one can possibly claim that Israeli settlement caused a demographic disaster for the native population since the Arab-PALESTINIAN population of the country is now more than 50 times greater than it was when additional Jewish return to their homeland began in earnest in the 1880’s. At no time—in no decade—did Arab-Palestinian population decline in Palestine (while over a million Jewish families were terrorized and expelled from Arab countries, and all their assets confiscated, including businesses, homes and over 120,000 sq. km. of Jewish owned land for over 2,500 years; over 750,000 Jewish families and their children were resettled in Israel), but the Native American population in the U.S. drastically declined (mostly through disease and some by conflict battles, by the way) from the beginning of European colonization (1607) until 1900 (when Indian numbers began a dramatic rise).
Four questions:
1) Arab-Palestinians deceptively claim The Land of Israel aka Palestine as their territory for over millennia! If Palestine was the ancient homeland of an ancient people with their own strong sense of national identity, can anyone name, please, the most famous Arab-Palestinians produced in those centuries and millennia of history? Who was the most celebrated of all in the long line of Arab-Palestinian kings, or viceroys, or prime ministers? Which Arab-Palestinian poet or philosopher stirred the world with his words and ideas? Which great Arab-Palestinian scientist or inventor or composer or painter achieved international or even regional renown? The inability to answer that question doesn’t testify to a lack of ability or brilliance: it testifies to the synthetic, phony and deceptive nature of the invented “Arab-Palestinian” identity. There were no remarkable or brilliant kings of Arab-Palestine because there were no kings of Arab-Palestine at all—no Arab nation ever existed in this area, only ill-defined pieces of various Islamic, Turkic, Byzantine and Roman empires over the course of 2,000 years. The only time any national identity existed centered on this particular piece of real estate, that national identity was Jewish: that’s why the only famous “Palestinians” who ever existed in The Land of Israel were Jews, from King David and King Solomon to Jesus to Moses, Maimonides (died in Israel in 1215) to David Ben Gurion. No Arab “Palestinian” nationalism ever existed, as distinct from Pan-Arabism, until Yasser Arafat (born in Egypt, raised in Kuwait) prompted by the Soviets, invented it deceptively as a pure fabrication after Israel in a defensive war, defeated the Arab armies and liberated the historical Jewish territory occupied by Jordan in Judea and Samaria (West-Bank) and Egypt in Gaza in the June war of 1967.
YJ Draiman
The objective of the League of Nations Mandate system in the 1920’s was to administer parts of the recently defunct Ottoman Empire (which as occupiers controlled/owned over 90% of the land in Palestine aka The Land of Israel, some of the land was leased to the Arabs by the Ottoman Empire as sharecroppers. There was no Arab ownership of land in Palestine aka The Land of Israel – only some wealthy land owners from Lebanon and local Arab leaders. Much of the land claimed by the Arabs was given to them illegally by the British Mandate authorities who violated their fiduciary obligation and were going to be charged by the League of Nations for those violations; but the League was dismantled after WWII and taken over by the U.N.), which had been in control of the Middle East since the 16th century, “until such time as they are able to stand alone”.
In 1948 when the British regime as trustee abandoned their duty and commitment to help re-establish the Jewish National Home in Palestine aka The Land of Israel, the Historic Land of Israel as was established during King Solomon’s and King David’s reign.
Israel Jewish population became the Majority and as stated in the 1920 Agreement declared its Sovereignty over its Historic National territory.
The borders of the Mandate for Palestine extended from the Mediterranean Sea to the west including what is today Jordan, the British Mandate of Mesopotamia to the east, the French Mandate of Lebanon to the north, the French Mandate of Syria to the northeast, and the Kingdom of Saudi Arabia and Kingdom of Egypt to the southeast and southwest respectively.
The Arab-Palestinians in Greater Israel do not seek peace and co-existence, only terror and violence and the destruction of the Jewish State.
It is time to abandon the delusion of peace with Arab/Muslim terrorists and face reality, after almost 70 years of Jewish appeasement and concessions, with Arab/Muslim continued terror and violence. It is time for Israel to stand its ground and take the territory originally allocated to the Jewish National Home in Palestine. Protect its people at all costs with zero tolerance and no holds barred.
Any Agreements with The Arab-Palestinians are null and void including the Oslo Accords which the Arabs violated since day one and Mahmoud Abbas aka Abu Mazen the Leader of the Arab-Palestinians declared in the U.N. speech in the summer of 2015 that he will not abide by its terms.
The only solution is to relocate all the Arabs to Jordan (which is historically and legally Jewish territory. Jordan forbids Jews to own and or reside in their country) or to the homes and the over 120,000 sq. km. (Jewish assets is valued in the trillions of dollars) the Arab countries confiscated from the over a million Jewish families that were expelled from the Arab countries and most of them were resettled in The Land of Israel.
The world stood idle throughout history while Jews were persecuted, terrorized and killed by the millions. It is time to assert our rights without the bias and anti-Semitism of the world at large.
“A Unified Israel is a Strong Israel”.
YJ Draiman
The Cleansing of Jews from Arab-Muslim Countries
Almost all of the more than a million Jewish families and their children living in Arab countries at the time of the re-creation of the State of Israel were terrorized and forced to leave and all their assets confiscated. Most of those Jewish families and their children were resettled in the Land of Israel and today comprise over half the population.
First Jews to arrive in the Arab countries was during King Solomon’s time. Aleppo in Syria was a thriving Jewish community during King Solomon’s time.
Jews living in Arab countries were terrorized, expelled and fled their homes and all of their property, personal, businesses, homes and over 120,000 sq. km. of Jewish owned Real Estate for over 2,500 years, valued in the trillions of dollars, due mostly to anti-Semitism and persecution when the Jewish state was re-established.
Today, that property is valued in the trillions of dollars.
In this incredible set of testimonies, we hear firsthand from Jews who were terrorized and left Egypt, Libya, Lebanon, Iraq, Algeria and Syria, etc..
What was it like before 1948 and how did things change in the months leading up to their forced expulsion?
Listen to these important but almost forgotten stories.
My grandparents from my mothers side came from Yemen and I was informed first hand some of the stories relating to the persecution of Jews in Yemen. I also have family that originated from Iraq and listened to their horrific depiction of the terror which the Jews in Iraq were subject to.
Anytime the Arabs mention taking Jewish land in the Land of Israel and compensation. We must remind them that they took Jewish land 6 times the size of Israel and Jewish assets totaling in the trillions of dollars.
At the 1920 San Remo conference of the Allied Supreme Council, at which the Mandates were granted (and the 1917 Balfour Declaration was incorporated as part of the allocation, that gave it the force of International Law), and at which time the Arabs received over 12 million sq. km. of territory with a wealth of oil reserves, the precise boundaries of all territories, including that of the British Mandate of Palestine aka The Land of Israel, were specified, to “be determined by the Principal Allied Powers” and were completely finalized based on the Faisal Weizmann Agreement of January 1919 which specified all of Palestine for the Jewish National Home which is about 120,000 sq. km., (see the minutes of the 1919 Paris Peace Conference and the 1920 San Remo Conference) and described four years later. However, it was clear that the boundary of Britain’s mandate for Palestine as trustee for the Jewish people was to extend eastward to the western boundary of its mandate for Mesopotamia. In 1921, following Churchill’s negotiations with Emir Abdullah Transjordan (later Jordan in 1946 was created in violation of Agreements, as the new Arab Palestinian State for the Arabs in Palestine/Israel) was part of the Mandate, but it was separated from the area on which a Jewish National Home had been reconstituted and to be re-established, a move formalized by the British in violation of treaties and agreements, by the addition of a September 1922 clause to the charter governing the Mandate for Palestine aka The Land of Israel, which allowed for postponement of all mandatory provisions which expressly included as part of the ‘Jewish National Home’ on lands which lay to the east of the Jordan River. YJ Draiman.
The author ignores the fact that a) The Arabs were a stateless indivisible nationality prior their being granted the states they presently possess by the very same states he dismisses as imperialists.
The Jews got Palestine and the Arabs got the rest of the Turkish Empire, even though they were not the indigenous peoples in most of it and their victims were still around, Jews, arameans, chaldeans, assyrians, berbers, yazidis, armenians, etc. Partly by historical right and partly for helping the British to win. The Jews played a more pivotal role but got less.
The Jordanians violated the Geneva Accords by forcibly transferring Jews out and Arabs in. Israel recovered territory in a defensive war that had been universally regarded as part of the land of Israel. The Palestinian Arabs were explicitly excluded from national rights by all of the Covenants of the 1920’s. Civil but not national rights. Those were conferred on the Arabs as a whole in the form of most of the Middle East. The mandate specifically called for Jewish settlement west of the Jordan.
The author is a hypocrite. He wouldn’t dream of conferring national rights on every ethnic minority in the world. On every tribe. There would be chaos. Every existing state would be torn apart and we would see unending war and civil war.
His basic argument is purposivism. This was Aharon Barak’s argument. It is the very Judicial activist disaster we have been arguing against in Israel and throughout the West.
https://en.wikipedia.org/wiki/Purposive_approach
This is the judicial activism that allows judges to rule as philosopher kings. “The Law doesn’t mean what it says, it means whatever we say it means, so get with the program, chum.”
It is fundamentally arbitrary and anti-democratic. It is based on elitist double-talk such as this character employed.
The land is ours. It was always ours. It will always be ours, no one living, dead or yet to be born has the authority or will ever have the authority to give any of it away. It is an inalienable trust. History, God, thousands of years of striving versus the phony claims of this recently artificially created phony people.
@ Adam Dalgliesh
:
I didn’t throw that at you (I didn’t even read your comment), but rather, at the author (whose article I also didn’t read).
A profster in a left wing department of a left wing college. It’s 9:1 odds that he’s a social’zt.
In my Preface I acknowledged that the author didn’t deal with the aftermath of Res 181. What I had in mind was the doctrine asserted by Kontorovich and Bell.
The author often cites UNGA resolution as affecting the law. Some hold this to be so.
b–t! @ Abolish_public_education:
@ Abolish_public_education:
While international law certainly favors Israel, international politics does not. Israel will establish its sovereignty only if it defends its right in on military, diplomatic and public relations fronts of the war with the Islamic world and Western hypocrites and anti-Semites.
@ Abolish_public_education:
b——t! If I’m a socialist, then Vladimir Putin is a giraffe!
Ted, please do not be so pessimistic. One the legal opinion is just an opinion. The cite in number 3 above is a very good argument that could very likely prevail if this ever turned out to be a legal battle. The reality is this is a battle on all fronts. The main one that decides in the end is militarily capability with the needed will to win.
The Prime Minister is no champion of bringing a new paradigm forth and disposing of the discussion of the two state solution, however I remember reading here that he was going to cave to Obama. BIBI did not cave to Obama and he will not allow a PA state to arise while he is Prime Minister.
His ace in the hole always is Abbas does not have the power or desire to make a real peace happen. Abbas is scared of Trump so he is playing along with him so he does not squashed by the USA stopping all funding to his PA. Abbas is already trying to put new roadblocks in the way by saying Russia must be involved in solving the conflict.
Assuming Abbas really wanted to make a deal will he compromise on Jerusalem, Jordan Valley, allowing Israeli troops in Judea/Samaria? Will he give in on “Right of Return”?
NO PAL State coming even with the ultimate deal maker.
Trump cares most about getting the Arabs to fight ISIS along with USAs help. Yes his ego is pushing him to try and make his “ultimate deal”. Somethings do not happen even for the writer of the “Art of the Deal”.
@ Abolish_public_education:
What is this b______t? Why do you claim everyone except yourself is a socialist? Nonsense!
The article by law professors Abraham Bell and Eugene Kantorovich, which I have posited above, is the effective reply to the Tikkun article that Ted Belman has posted, and for which he has requested an effective response. Bell and Kantorovich demonstrate on the basis of several similar cases decided by the World Court, and which have established precedents, that Israel became the sovereign power over all of “Palestine,” according to its borders on May 15, 1948, when the British authorities formally renounced their League of Nations “mandate” over the territory and completed the withdrawal of their entire administration. Since Israel was the only “successor state” formed in this territory when the British withdrew –the Palestine Arabs were offered a state by the United Nations General Assembly, but declined to establish one–Israel automatically acquired sovereignty over the entire territory, including Judea, Samaria (the “West Bank”) and Gaza. The Palestinians missed their chance in 1948, so that their proclamation of a state decades later has no legal validity–all of “Palestine” already belonged top Israel, according to the World Court precedents. It is true that the World Court would probably rule differently concerning Israel and Palestine if ever called upon to do so, but that is because of international politics, not international law. In cases where they were not under political pressure and were free to rule on the basis of international law, the court always ruled in favor of the successor state to the former colonial power or international trustee,
Ted should post the Bell and Kantorovich article immediately to counter Tikkun’s distortions of international law.
:
An international social’zt.
Palestine, Uti Possidetis Juris and the Borders of Israel
Abraham Bell
Bar Ilan University – Faculty of Law; University of San Diego School of Law
Eugene Kontorovich
Northwestern University Law School
March 8, 2016
Arizona Law Review, vol. 58, pages 633-692 (2016)
Northwestern Public Law Research Paper No. 16-04
San Diego Legal Studies Paper No. 16-214
Abstract:
Israel’s borders and territorial scope are a source of seemingly endless debate. Remarkably, despite the intensity of the debates, little attention has been paid to relevance of the doctrine of uti possidetis juris to resolving legal aspects of the border dispute. Uti possidetis juris is widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries.
Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights).
Number of Pages in PDF File: 60
Keywords: Israel, Palestine, Uti Possidetis, International Law, Boundary Disputes, Borders, Boundaries, Public International Law, Territorial Sovereignty, Occupation, Self-Determination, Mandates
JEL Classification: K10, K19, K30, K33
Sorry, the link was supposed to be this: https://medium.com/@MarkVandermaas/thank-you-for-proving-jews-cant-trust-the-world-s-promises-9d7ae3f6b4e9
The author raises some interesting points, but Ted, I would not be so pessimistic. Personally, I’m very grateful to him, as I explain in my response: . You are most welcome to publish it on Israpundit. Regards, Mark