By Ted Belman
I recently asked, Does Israel occupy Gaza as a matter of law. I did so to bring to your attention a current lawsuit or petition which had to deal with the question.
One of the comments took me to task for not expounding on the question of “occupation” more fully. In addition I received an email from Elon Magill, Founder, Israel White Paper– Upholding Israel’s Legal Foundations [Yesha]. Do visit the site.
In the discussion I asked what arguments are there that negate the Israel High Court decision on the fence, which was based on the law of “belligerent occupation”. He brought to my attention the following,
-
The Law vs Aharon Barak by Howard Grief and others,
Outline of A Legal Strategy Against Disengagement by Yisrael Medad of My Right Word
Constitution of the Jewish Agency for Palestine
The Irrelevancy Of ‘Belligerent Occupation’ and the 4th Geneva Convention
by Yoram Shifftan
In “The Origin of the Occupation Myth.” , Howard Grief stated:
-
The tremendous legal and political harm which these jurists (in the fence decision) have caused to the Jewish legal case cannot be rectified or reversed in a single stroke. However, a beginning can certainly be made to overcome this damage by having the Knesset pass a special law declaring that Judea, Samaria and Gaza are definitely not occupied territories, but rather the patrimony of the Jewish People.
It may be that the fence decision is not the last word on the subject. Israel always took the position that the Geneva Accords did not apply to J&S but gratuitously applied the humanitarian provisions thereof in any event. It may be that they only conceded “belligerent occupation” for purposes of enabling the High Court to decide the fence matter based on the humanitarian provisions of the Geneva Accords.
Elon Magil ends his email to me,
In a passionate article after the Israeli Supreme Courts ruling on the fence, Att’y Howard Grief stated,
-
“His [Justice Barak’s] judgment does not uphold the Rule of Law, as he so piously claims, but actually negates it”
Therefore, I ask to all: If the Israeli government and courts are not upholding the rule of law, and the Knesset is unwilling to step in and has in fact been an enabler of law-breaking, what recourse do we have left in the one and only Jewish State?!
Thus, we need to take the legal and political struggle to a more favorable venue, the United States of America. Some of you might not be aware, but the U.S. is an official party to the Mandate for Palestine. Its courts have never ruled that Judea and Gaza are “occupied.”
The United States has a constitution that is the supreme law of the land, institutional checks and balances, a Congress that is responsive to the people, a President who is sworn to uphold the laws of the land. Its people share common values with the Jewish people and are generally sympathetic to Israel causes (although they have lately been confused by Israel’s actions since they have always reflexively supported whatever Israel does).
Therefore, all Jewish organizations who have maintained true to the integrity of the Land of Israel throughout these trying times must seek recourse in possibly the last venue left to us, the United States of America.
Assuming for the moment that Israel is an occupier according to the Geneva Convention then it is fair to point out that this includes all land between the fence and the green line in addition to Jerusalem and the Golan. So it might be fairly asked, what right does Israel have to any of these lands? Let’s go further and include the lands between the green line and the Partition Line. Why not?
On the other hand, Res 242 allows Israel to remain in occupation until secure borders have been agreed upon. This resolution, while saying that territory can’t be acquired by force also does not require Israel to withdraw from all territories.
“International law” is a misnomer. It has been said, it is neither “international” nor “law”. But it is used as a club to beat up on Israel. Those wielding this club don’t observe it nor do they enforce it elsewhere.
Now what does this discussion have to say about Kosovo? Kosovo belongs to Serbia and everyone agrees. Yet the UN attacked Serbia and now wants to create an independent Kosovo. What right did they have to attack? What right do they have to create Kosovo. According to Res 242. the UN holds that the acquisition of territory by force is inadmissible. Thus how do they justify taking Kosovo from Serbia?
Thus I would argue that the law of occupation is not the last word. A negotiated settlement is required.
But the parties will never compromise enough to reach an agreement. Then what? The “occupation” continues as a new reality develops. Jews are increasing in number in J&S and Arabs are decreasing in number.
The Quartet may try to impose a solution (The Saudi Plan) and Israel will have to deal with that when the time comes. Meanwhile war clouds are gathering.
Also your questions vis a vis the view that Israel cannot acquire territory in J & S in the similar, if not the same circumstances that the U.N. claims it can vis a vis Kosovo, which I meant to include in post #3, but shipped it off before I got that in. Now it is in.
Thanks Ted. I did not miss your point however.
I was trying to say your questions make no sense because what the West is trying to do with Kosovo vis a vis the Serbs and the Palestinians vis a vis Israel defies logic and therefore makes no sense.
Western nations feel uncomfortable of course taking positions and actions without giving at least some explanations or justifications. Sometimes however positions are taken that are explained and justified in ways that bear no relationship to realities and therefor make little if any sense.
In such cases however it is the position taken that is all important and not whether the explanation holds up to scrutiny.
That may to a large extent account for what you point out is happening vis a vis both the Serbs and the Israelis.
Bill
I liked your discussion of the implications of looking to the US for a ruling.
As for Kosovo, you miss my point. I asked rhetorically, if Israel can’t acquire territory by force, how can the UN?
There are a number of issues raised in the quoted selections forming part of this article and Ted has raised some questions that deserve to be considered.
Beginning with a quote by Elon Magil as to all of H. Grief’s words or partly his his own words asking the following question:
I found reference on the internet to the U.S. role in the British Mandate for Palestine, which is what I presume is referred to. It appears that the U.S. and Britain negotiated the terms of the Mandate in May, 1922 and the League of Nations approved that mandate in July 1922.
There are a number of questions and concerns with the reasoning of H. Grief:
1. If indeed it is the British Mandate for Palestine Mr. Grief is speaking of, then there would in my view have to be specific provision within the Mandatory itself giving the U.S. concurrent status and standing with Britain, to administer or to oversee that the Mandatory was being implemented as the terms thereof provided.
Secondly, in order for that role to have the force of law in America and a matter to be dealt with in the American legal system, the American government would in some fashion have to have adopted that role and taken on whatever rights and obligations that may have accrued to the U.S. purusant to the terms of the Mandatory and the acceptance of that mandatory by the League of Nations.
I could go on and thresh it finer, but the first point I am making is that I frankly doubt American courts would have jurisdiction to hear any matter pertaining to setting out the rights of the Arabs and Israel to the land under mandatory control almost 100 years ago.
2. Since the Mandatory was British, it seems that Britain would be the one with jurisdiction to rule on the meaning of the Palestinian Mandatory Agreement as to the boundaries within which Israel was to come into existence.
3. In order for a case such as Mr. Grief contemplates to come before an American court, assuming somehow the court does have jurisdiction to hear it, I doubt such case could be brought at the instance of a private individual and would require the State of Israel to bring that matter before the courts.
Given the prevailing attitudes and beliefs of the GOI and all Israeli politicians and it appears from a recent poll, the majority of Israelis, I do not see that happening.
4. If the GOI were to bring the case Mr. Grief wants to be brought within the U.S. justice system, there is a catch to that. The GOI would have to attorn, meaning be bound by the American court’s jurisdiction and bound by any decision forthcoming.
Would the GOI even accept a small risk of an adverse ruling as to the land it was rightfully granted and indeed that its very legitimacy might become open to debate?
I cannot see that happening so in my view the GOI would not be prepared to attorn to American jurisdiction. which means they would be putting not only the matter of Israel’s borders in issue, but also the very legitimacy of Israel that it derives from the Mandatory and prior and subsequent agreements, League of Nations resolutions and the 1947 partition resolution itself.
5. I cannot see any state, especially Arab states and Palestinians ever accepting to be bound by an American ruling in such matter that was favorable to Israel and unfavorable to their aspirations.
6. Further, I know of no obligation that would require the U.N. to be bound by any finding of an American court, unless it of course attorned to American jurisdiction and agreed to be bound by the outcome of the matter.
As to Ted’s questions:
NATO has put forward its justification to attack Serbia as being a defensive attack to save Kosovo Muslims from the Serbs. There is much debate surrounding that justification and good reason to be suspicious of that justification offered by NATO.
In terms of justifying the Western move to have Kosovo become an independent state, from all accounts, the 90% Muslim population of Kosovo are as riddled with corruption, passionate hatreds and unrealistic expectations and aspirations as the Palestinians. Like the Palestinians, the Muslims of Kosovo are by their actions, attitudes and current natures keeping the West from realizing the goal the West had imagined for Kosovo.
Some of the same questions indeed can be asked relating to the Israel – Palestinian conflict. That does not mean that the answers are any easier to come by or that they make any sense at all.