Eli E. Hertz
Background
The language of Article 49 was crafted in the wake of World War II and the Nazi occupation – an occupation that led to a war of aggression in which Nazi Germany attacked its neighbors with impunity, committing a host of atrocities against civilian populations, including deportation and displacement of local populations in occupied Europe. Millions were sent to forced labor camps and those of particular ethnic origin, most notably the Jews, were sent to their deaths in the gas chambers. The drafters of Article 49 were concerned with preventing future genocide against humanity.
Critics and enemies of Israel, including members of the UN and organs such as the International Court of Justice (ICJ) have come to use the Geneva Convention as a weapon against Israel, even when statements by authoritative analysts, scholars and drafters of the document contradict everything said by those who distort history for politically motivated reasons.
It is common knowledge that from its birth, Israel customarily follows international humanitarian law without being told or forced to do so by outside authorities.
“Occupied Territory”
The term “occupied territory,” which appears in the Fourth Geneva Convention, originated as a result of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.
Professor Julius Stone, a leading authority on the Law of Nations, categorically rejected the use of the term “occupied territory” to describe the territories controlled by Israel on the following counts:
(1) Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and does not belong to any other state.
(2) The drafting history of Article 49 [Protection of Civilian Persons in Time of War] – that is, preventing “genocidal objectives” must be taken into account. Those conditions do not exist in Israel’s case.
(3) Settlement of Jews in the West Bank is voluntary and does not displace local inhabitants. Moreover, Stone asserted: that “no serious dilution (much less extinction) of native populations” [exits]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred].”
Arab opposition to Jewish settlements is based on the last paragraph of Article 49. The “Occupying Power” may not “Deport or transfer parts of its own civilian population into the territory it occupies.”
One can hardly believe this baseless ICJ assertion that Israel, the only free and democratic country in the Middle East used “deportation” and “forced transfer” of its own population into “occupied territories.”
Article 2 of the Fourth Geneva Convention
Article 2 of the Fourth Geneva Convention applies only to conflicts that “arise between two or more high Contracting Parties,” which is not the case at hand, as Israel is the only High Contracting Party (or state) in this conflict, and Jordan never was. Thus, the Fourth Geneva Convention is inapplicable!
Professor Julius Stone, one of the twentieth century leading authorities on the Law of Nations touches on the applicability of Article 49 of the Geneva Convention, writing on the subject in 1980:
“That because of the ex iniuria principle [unjust acts cannot create law], Jordan never had nor now has any legal title in the West Bank, nor does any other state even claim such title. Article 49 seems thus simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49 which is rather directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants, for other than security reasons.
Support to Stone’s assertion can be found in Sir Professor Elihu Lauterpacht’s writing in 1968:
“Thus Jordan’s occupation of the Old City -and indeed of the whole of the area west of the Jordan river-entirely lacked legal justification; and being defective in this way could not form any basis for Jordan validly to fill the sovereignty vacuum in the Old City [and whole of the area west of the Jordan River].”
Professor Eugene Rostow, past Dean of Yale Law School, U.S. under Secretary of State for Political Affairs, and a key draftee of UN Resolution 242, concluded that the Fourth Geneva Convention is not applicable to Israel’s legal position and notes:
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“The opposition to Jewish settlements in the West Bank also relied on a legal argument – that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.”
It seems that the International Court of Justice never explained it either.
Article 80 of the United Nations Charter
The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’ A trust does not end because the trustee dies [or] resigns.
UN Article 80 was specifically created in San Francisco on 26 June 1945 to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. Jews legal rights of settlements survived the British withdrawal in 1948.
The International Court of Justice [ICJ], Rome Statute of the International Criminal Court [ICC), and the Fourth Geneva Convention lack the authority to affect ownership of the Territories of Judea and Samaria known also as the West Bank.
@ Bernard Ross:
That is the essence of it all.
@ Wallace Brand: thank you for these interesting links which help again to cast the blame for ignored Jewish rights on the state of israel. I visited the links, the third link was a repeat of the second. In reading Mr. Theron”s opinion I was astounded to find that there was absolutely no mention of the rights of jewish settlement west of the Jordan river which were reserved for global jewry. I find this to be negligence, incompetence or both. As the settlement in YS was never fulfilled it remained to be consummated, but not assumed to be canceled even by a mandate expiration. Interestingly, the golan was annexed and theron said it had the least support for settlement rights. In the most absurd case Israel could have settled foreign non Israel jews under the mandate rights so as not to confuse jewish rights with occupation red herrings. After all, in the words of the global hypocrites: Jewish settlement was to be “encouraged”. There is nothing more sickening than the continuing efforts of “Jews” to shoot themselves in the foot. Why does no Israel govt repudiate these interpretations and claim jewish rights for global jewry. Either that or resign as representative of the Jewish people. after all, how can one pretend to represent a party when perennially ignoring the only interest that they have. as time passes it appears to me that the jews are excluded from YS because the state of Israel does not want it and that the rights of global Jewry are intentionally confused with the sovereign claims of the state of Israel. If the 2 parties were to be considered as separate lt would be clearer. One could not oppose a right of one party based upon the actions and behavior of a second distinct party. Although I am not a lawyer, this appears to be common sense. according to my understanding of what I read: any state administering the west bank is obligated to encourage jewish settlement there. Both Israel and Jordan violated this imperative and, theoretically, the way to mitigate the damage and restore justice would be an affirmative action program to settle jews quickly and en masse. I suggest a US style Homestead act which grants land to returning Jews. My thoughts only seem absurd because the current status is absurd and in contradiction with agreements with the Jewish people: the only people internationally agreed to have political rights in YS. what is absurd is the abrogation of Law and then asking people to observe the abrogation rather than the law. What is demonstrated is that Law is irrelevant and might makes right. Israel can settle foreign jews without extending their sovereignty or claiming YS
@ Wallace Brand:
so tibet has been occupied by china, the earth is still spining, and by the looks of it, international law and 50 cents still will not buy a cup of coffee… http://www.tibetjustice.org/reports/occupied.html
were israel to have a normal leadership, that knows understands and cherishes jewish nationalism (read: kahane leadership where a spade is called ‘a spade’)this ridiculous blatantly wrong AND mendacious term known as ‘occupied territories’ would not exist .
why?
because israel just would not care.
sadly, that is not the case. the entire mentality is that of ‘what would the world say’
Israel took control of and occupied the West Bank and the Gaza Strip after the 6 Day War in June 1967. The legal adviser to the Israeli government, Theodor Meron, delivered an opinion on a question asked by the Prime Minister’s Office regarding the legality of civilian settlement in the West Bank and Gaza Strip. His conclusion, simply stated in the cover note to the opinion, was that “civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention”. http://www.soas.ac.uk/lawpeacemideast/resources/ His opinion in English http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf His biography per the United Nations http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf
When I contacted him some years ago, he was still convinced his opinion was correct. My own view is that the term transfer means the coerced move of people contrary to their rights as provided in the UN Declaration of Human Rights. Judge Meron’s interpretation would require nations to prohibit persons from moving where they wanted to and where they had a right to settle.
With the vast majority, if not all of the world’s nations holding fast to the perverse interpretation of the 4th Geneva Convention as applying to Israel in respect of the Palestinians, it demonstrates in spades the operative principle that might makes right.
Even many Israeli and most diaspora Jewish leaders, have done Israel severe prejudicial harm by themselves having referred to J & S as occupied territories, thus conceding the perverse world majority interpretation of the 4th Geneva Convention and applicable international law.
If Israel is to ever make a convincing case that she is in rightful and lawful occupation of J & S and that she has the sole or at least superior right at law to have sovereign possession and control of J & S, now would be a very good time.
Art. 80 also forbids the UNGA from impairing Jewish rights in the entire Palestine Mandate territory.
Last November’s resolution awarding the PA non-member state status violated Art. 80 and had no legal effect.
Ironically enough, the Israeli government could be criminally prosecuted under Geneva IV 49 (6):
For the forcible expulsion of Jews from Gaza for no other reason than they were Jews.
I bring this up to illustrate the fact that international preoccupation with preventing the displacement and forced removal of the native population is hypocritical and biased.
No one objects if the people expelled from their homes and have their entire communities uprooted are… Jews!
The vaunted protections of international humanitarian law do not apply to them.
Great article. Just shows how all the major newspapers around the world feed us lies.
Rostow’s argument as follows makes the other arguments irrelevant and out of context
why don’t the successive Israeli govts bring this up at the proper forums or make declarations affirming this right?
The Jewish people are the ONLY expressly designated population with the right of settlement on the west bank.