Snub the Hague!
David Wilder
May 14, 2012
A short time before Passover a group of Jews moved into a newly purchased building in Hebron. Named Beit HaMachpela, the property is situated within the complex containing Ma’arat HaMachpela, the tomb of the Patriarchs and Matriarchs, just opposite a large parking lot, used by tourists arriving at this holy site. The building was legally purchased; Hundreds of thousands of dollars passed hands. One of the Arabs involved in the deal was arrested by the palestinian authority and sentenced to death. Sale of property to Jews is a capital offence, according to PA law.
Levinson writes: (AG) Weinstein reportedly told (PM) Netanyahu and (DM) Barak that the expropriation of Palestinian land and homes, such as the Hebron takeover, could lead to Israeli officials being indicted at the International Criminal Court in The Hague…Sources in the Justice Ministry indicated that they fear the State of Israel or Israeli officials could be charged by the ICC, in operation since 2002. According to the Fourth Geneva Convention, an occupier moving population into occupied land constitutes a war crime.
International humanitarian law prohibits the forcible transfer of segments of the population of a state to the territory of another state which it has occupied as a result of the resort to armed force. This principle…was intended to protect the local population from displacement, including endangering its separate existence as a race, as occurred with respect to the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. This is clearly not the case with regard to the West Bank and Gaza.The attempt to present Israeli settlements as a violation of this principle is clearly untenable. As Professor Eugene Rostow, former Under-Secretary of State for Political Affairs has written: “the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there” (AJIL, 1990, vol. 84, p.72).
The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted.
Roosevelt said the only thing to fear, is fear itself. (…) G-d did not command us to fear Hague, certainly not people, who, if they had their way, would have prevented the rebirth of our people in our land, people who did nothing to prevent extermination of between six to seven million Jews a few decades ago, people, whose governments participated, actively or passively, with Nazi Germany.
@ Wallace Brand:
UN Declaration of Human Rights.
Article 13.
• (1) Everyone has the right to freedom of movement and residence within the borders of each state.
• (2) Everyone has the right to leave any country, including his own, and to return to his country.
@ Ted Belman:Ted, to my aging recollection, the Arabs declined to accept the General Assembly’s recommendation in Resolution 194, therefore it is of no force or effect.
Ted? Where did you find “the right to live anywhere in the state” as a civil right for those who seek to overthrow the state by force and violence? When asserting power, it is far better to say you are asserting it to uphold the rule of law. Even the UN required an Arab who wanted to return, to express his willingness to live at peace with his neighbors.
@ yamit82:
I agree with you. This conflict will not be solved by law.
@ Wallace Brand:
Actually it provided that the rights of the Jews to establish a national homeland should not impair the civil and religious rights of others. It did not name them as Arabs. I fully agree with you. Their rights were not created but preserved. One of those rights is the right to property. Another is the right to live anywhere in the state.
Wallace Brand Said:
I agree with you but Israel’s ‘Absentees Property Law’ had nothing to do with non-payment of taxes.Wallace Brand Said:
Res 194 a recommendation only and it said Israel should , not must, all those who wish to return do so or give them fair compensation.
“Resolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”
Ted, I omitted one matter you raised. Your “International Law professor friend” said that San Remo granted “civil rights” to the Arabs”. It did not grant any rights to the Arabs. All it did was prevent the Jews, when they attained a population majority and would be able to exercise sovereignty, was prevent them from impairing the civil rights, or religious rights, of the non-Jews.
The French attached a process verbal that was agreed to by the others. It said that what the savings clause on civil and religious rights meant, was that the non-Jews would not have to surrender any rights they had. So the San Remo agreement was NOT a grant of rights to the Arabs. It just saved the rights that had been granted to them by the occupying colonial Turks. Those were not very extensive rights.
@ Ted Belman:
The Arabs hold title to a lot of prime property in West Jerusalem as well as other parts of the country. Jews private and institutional hold legal title to a lot of land ceded to the Arabs in all agreement to date. That includes large tracts of land in Y&S purchased by the JNF during the pre-state mandate period and even before under the Ottomans. There is even such Jewish owned property in what is called today Jordan.
Nobody wanted to open such a can of worms so the Jewish claims were either not pursued of limited both by the political establishment and the legal establishment because they wanted to avoid the Arab counter claims.
I have always maintained that once you attempt to base Israels rights on legal arguments you do not take into consideration the Arab legal arguments which in any constituted court one can never be certain of a final outcome.
The only real solution is Power and our willingness to assert it in our own national interests and to finally institute the principle of population transfer. Israel might not always be in the position of superior power vis a vis our enemies and so long as we do have the power, delaying implementation of transfer might render such a National necessity impossible if in the future the balance of power is equalized.
@ Ted Belman: Dear Ted, I can’t agree that the civil rights of the Arabs protected them against escheat of their lands. It doesn’t protect American citizens who leave and abandon their land, not paying taxes or attending to other obligations of ownership. Why should their civil rights protect the rights of Arabs in land any more than it protects Jews. If a Jew owned private property in Israel and abandoned it for many years,, would he retain a right to return to it?
Under 400 years of Ottoman Rule, the Arabs turned the land of Milk and Honey into a malarial wasteland. First, the Ottomans failed to protect the farmers from the Bedouins. Second they had a system of land tenures in which most land was retained by the state and the Arabs could just work it for a limited period. Third, cronyism resulted in the farmers not knowing whether his “lease” would be renewed. Most land was state land. So they had no incentive to invest in maintaining or improving the land. When Israel became the State, the Arabs who fled had no private property rights inmost of the land.
The UN resolution, to my aging recollection providing for return of the Arabs to some of the land they had left, and was limited to those who agreed to live in peace with their neighbors. Those in the refugee camps did not so agree. They had no right to return to State land, and if they had private property, — a few did —, they just abandoned it.
So far as I have read, the private property rights of Arabs in land they did not abandon has been carefully protected by the Israeli courts. It even protects them in Ulpana, Migron, and Hebron when the Court has made no effort to verify that private ownership.
@ Wallace Brand:
Legal opinions here serve the political exigencies and agenda of the government in power. The Israeli AG is appointed by the PM. There is no doubt the AG’s political and legal opinions were not known before his appointment. He can also be fired and replaced at the discretion of the government.
Every AG sees themselves as a future judge of the SC and all of his/her decisions are therefore considered to be in line with the general group think of the Israeli SC. It is rare where any AG makes a decision overturned and overruled by the SC. Therefore their legal arguments and any substantive basis for their opinions are usually taken so that they line up with what they believe the Israeli SC would approve or rule on were
The Israeli court to have to rule on such an issue.
The Israeli AG has a dual job description often in conflict with each other, They are at the top of the Justice Dept including prosecutions and they act as the governments main authoritative legal adviser and are empowered to defend the Israeli government in any litigation brought against the government. The conflict arises in every government where an AG refuses to defend the government because they acted in opposition to the legal advice and position of the AG acting in the capacity of the governments legal adviser. When such situations do occur the Media and public opinion usually turns against the government so Governments tend to align themselves with the AG’s recommendations if anything due to the political fallout if they don’t.
Going back to my initial point. The PM appoints the AG who is then ratified by the whole government usually rubber stamped and then brought before the Knesset plenum for a vote. The majority coalition usually has no problem getting their guy elected and the coalition invokes party and coalition discipline.
To get legal rulings in line with the political right you need to first to appoint such an AG. This is almost never the case and no legal advice or opinion should be expected from such AG’s because they usually are apposed politically and ideologically to the governments they serve under.
Such are the anomalies of both the Israeli political and legal systems. Politics and ideology rule and determine both.
@ Wallace Brand:
I had a conversation with a prof of international law who was a former classmate of mine and is a strong Zionist. We discussed Israel’s legal rights to the land. As much as I repeat the mantra that Israel has the right to the land, he keeps saying not so fast.
If the FGC applies, Israel cannot annex the land or even apply Israeli law there or even in the settlements.
If we claim our rights flow from San Remo and the Mandate,then Arabs also have rights which flow from the mandate, namely civil and religious rights. These rights include the right to live in the lands which were called Palestine and that includes Tel Aviv. Therefore he argues that the Arabs do have a right of return. That’s why Israel doesn’t claim our rights from the Mandate. You never hear Israel mention art 80 of the UN Charter which preserved those rights.
He also argued, I think, that Israel’s law taking over title to all abandoned property was illegal. One should look at parallels to Jewish property in Europe prior to end of WWII
I argued that the War of Independence in ’48 changed those Arab rights because they were our enemy. The civil and religious rights can be lost due to one’s own actions.
One more issue I raised that didn’t get a clear answer is why can Israel pass laws pertaining to the settlements which some MK’s wish to do?
Occupation law permits the occupier to requisition land for various prescribed purposes but it doesn’t permit expropriation. Only in the latter does the Arab lose title in exchange for fair compensation. In the former he just loses the use of it temporarily. A big difference.
As I see it, both the compulsion of the Geneva convention and the UN Declaration of Human Rights are directed to nation-states who are occupying powers , not individual protected peoples. Individuals are governed by the law of their state. What Weinstein wants to do is to turn the Geneva Convention into an agreement that requires a nation-state to PREVENT an individual from moving from where he is located to where he wants to go. What it does is to prevent a nation-state from REQUIRING an individual to move. If a nation-state were to prevent an individual from moving to where he wants to go it would appear to violate his rights under the UN Declaration of Human Rights.
Article 13.
• (1) Everyone has the right to freedom of movement and residence within the borders of each state.
• (2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 15.
• (1) Everyone has the right to a nationality.
• (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
It is undisputed that the settlers move to where they locate motivated by their own religious convictions and not because they are required to do so by state compulsion. So long as they do not seek to settle on private property that has been shown to belong to someone else and therefore violate his property rights, the state may not use its coercive power on him. To find otherwise would be to mistake the target of the Convention which regulates state power, not the rights of individuals. The case is even stronger if you find that under the grant of political rights at San Remo, Article 13 (1) of the Universal Declaration of Human Rights is operative.
There is one more aspect that I haven’t gone into.
Israel has not annexed Judea and Samaria. It is under military law. So assuming the so called “Basic Law” of Israel is identical to the US Constitution (and I don’t know that it is) the state is required to give the settlers “due process”. But due process does not mean “judicial process”. It could mean just military process and apparently Israel has put Barak in charge of Military Process. The military may make a decision for the purpose of keeping order where its troops might otherwise be overwhelmed.
A good example of that is all the complaints from liberals in the US about Obama deciding to kill Awlaki in Yemen without first holding a judicial trial. Attorney General Holder, with whom I do not often agree, said that Constitutional “due process” does not necessarily require “judicial process”. It only requires process that is “due”. If we are at war, one doesn’t apply “criminal law”, but one applies “the law of war”. Under the law of war, the military (meaning, Obama in the US or possibly Barak as the comander in chief in Israel – I think but I do not know) would be entitled to make the decision. So President Obama gave Awalak “due process” before he ordered him killed, but it was not “judicial process” as is usually the case in time of peace. Congress has not specifically declared war, but it has enacted the AUMF, “authorization to use military force’, that in the Hamdan case was decided by the US Supreme Court to authorize the use of the law of war against unlawful enemy combatants.
But just looking at the Attorney General’s opinion, it doesn’t make sense.
@ david frankel:
David, I love your elegance and delicacy. 🙂 What you said is true, all of it.
JUDEA AND SAMARIA BELONGS TO THE JEWISH PEOPLE THE HELL WITH EUROUPE AND THE CORERUPET INTERNATIONAL LAW IF ANY BODY SHOULD BE DISPLACET IT WOULD BE THE ISRAELI GOVERMENT THEY ARE THE CORUPET OFFICIALS FOR SIDING WITH THE ARABS
It is total nonsense to bring up the International Court on this issue. Only recently the PLO disguised as the PA tried to bring a case against Israel. Their efforts were rebuffed because the Court exists to settle disputes between nations and not nations and terrorists gangs. So which nation is the Attorney General worried will bring a case against us? There is none! This is all just smoke to hide his personal hatred for Jewish pioneers and to protect the interest of the Arab terrorists.
Furthermore it is a basic principle in law that one needs “standing” to bring a complaint. This is followed by the International Court as well. A nation would have to show that they have been injured by Israel’s action in some way as a nation. Most of the disputes involve border or resource issues. So again what nation can claim standing in an issue of territory to which no nation in the world claims sovereignty? The best proof of this is that no nation, not ever Jordan, has attempted to bring a case against Israel over Yerusaliim. I have no doubt that if it were possible, the entire Arab League would be at the Hague, yesterday. So either Am HaAretz is blowing its usual hot air or our conscientious Attorney General is speaking true to his history.
Displacement from territory is fine if the territory belongs to another nation and there is involuntary displacement. First, Samaria and Judea legally belong to Israel, not to Jordan, and not to a group of refugees now known as the Palestinians.
Secondly purchasing land is not displacement. Thirdly if the government of the “Palestinians” has the death penalty for selling land to Jews it is no better than a Nazi government and does not deserve a country of its own or a leadership role. It is time for Israel to assert its rights to Judea and Samaria
Voluntary purchase and sale transactions for valuable consideration are not “expropriation”. This shouldn’t even be an issue. “dispossession” and “expropriation are involuntary taking of property without the consent of the owner (without or without compensation). Making this grotesque association by the Attorney General of the State of Israel no less is shameful and inexcusable. When the real battle should be to expose the scandalous lie of “occupation” ascribed of a mythical state. An occupation of a sovereign that was not sovereign at any time before the “occupation” took place. A sovereign that in fact didn’t exist then or now or ever. The scandalous lie of occupation of our own own land to which we have returned – occupied by invading Arab tribes from the Arabian peninsula. That’s what the Attorney General of the State of Israel should be asserting.