Final borders will be determined not by law but by negotiations and failing agreement, by possession

By Ted Belman

The Independent just published an article which said Secret memo shows Israel knew Six Day War was illegal. The “Secret Memo” it referred to was the one written by Theodore Meron, the Israeli Foreign Ministry’s legal adviser at the time and today one of the world’s leading international jurists.

The Independent shows its true colors by the title to the article which in no way can be construed as the conclusion of the Memo. Meron thought the settlements were contrary to the Geneva Convention. Evidently Meron still thinks he was right.

Last year, the New York Times published an article by leftist Gershon Gorenberg titled Israel’s Tragedy Foretold. In castigating Israel for the settlements, he relied on the same memo.

In my response, The Real Tragedy in Israel, I noted,

“Mr. Meron’s conclusion has been thoroughly discredited by legal scholars over the years and Mr. Gorenberg’s thesis which rests upon it must suffer the same fate.”

relying on the arguments of Professor Talia Einhorn, Adjunct Professor of Law, Tel Aviv University, and the late Eugene W. Rostow, Dean of Yale Law School, US Undersecretary of State for Political Affairs between 1966 and 1969. and concluded,

“Thus the “occupation” was and is legal, having been authorized by the Security Council and the settlements are legal pursuant to the trust created by the British Mandate. In accordance with Israel’s rights, The Oslo Accords did not restrict further settlement.”

The Independent article concludes otherwise,

The argument that the settlements are illegal, stated in successive UN resolutions, and by the International Court of Justice advisory opinion condemning the separation barrier in 2004, is reinforced by such an authoritative source. It strengthens the political case in any “final status” negotiations on borders with the Palestinians for genuinely equitable land swaps of Israeli territory to a future Palestinian state if Israel is to retain settlement blocks.

Whether the settlements are legal or illegal is a matter of law for a court with Jurisdiction to decide. No such court exists. The ICJ is not seized of the matter nor will it be. What the UN resolutions say, can in no way determine what is or is not lawful. Its resolutions have no force of law. Nor does an advisory opinion of the ILC.

Finally it is still valid international law that land acquired in a defensive war may be kept by the victim of aggression. After the Second Lebanese War, the NY Sun published an article, Naked Aggression by Mr. Kontorovich (teaches international law as an assistant professor at George Mason University School of Law, and currently as a visiting professor at the University of Chicago.)

Because self-defense is an “inherent right” under the U.N. Charter, many international law scholars maintain that territory taken in a defensive war can be kept — this further serves the goal of deterring aggression.

He also adds,

“Still, the norm against acquisition of territory through force is so strong that many claim it even applies to land taken in a defensive war.”

They may claim what they want but look at reality. Borders are often changed as a result of war. A most recent example is the recent Balkan Wars which created many new countries or countries to be with changed borders.

To the credit of Mark Regev, the Israel Foreign Ministry spokesman, he said yesterday: “We do not accept that the West Bank is occupied in the classic sense.” He added that it was not sovereign Jordanian territory before 1967 and it had not enjoyed legal status since the British mandate, which had the remit, underpinned by the League of Nations, of establishing a Jewish national home.”

He is in effect saying the Palestine Mandate set aside all of Palestine including Judea and Samaria for “close settlement of the Jewish people” and the Geneva Convention can in way way interfere with such rights.

It is for these reasons that Israel considers the land “disputed land” rather than “occupied lands”.

To Independent’s credit it also noted

“Prime Minister Ariel Sharon secured a promise in 2004 from President George Bush that large Israeli “population centres” in the West Bank could remain in Israel in any such negotiations. In a subsequent letter to the Palestinians, the President promised that final borders had to be subject to agreement by negotiation.“

Thus final borders will be determined not by law but by negotiations and failing agreement, by possession.