By PETER WERTHEIM, JERUSALEM REPORT
The misuse of international law as a tool of political condemnation is especially unhelpful right now.
For David Kretzmer, “The chickens come home to roost” (August 26), mere legal opinions can harden into established norms in the field of international law if large numbers of eminent lawyers support those opinions, even if other equally eminent lawyers do not. Further, Kretzmer suggests that black-letter norms are also established when a large majority of states repeatedly pronounce certain activities of another state to be illegal, even if the said majority behave in much the same way or worse in analogous situations. Fortunately for Israel, and common sense, binding rules of international law are not made that way.
The hazards of adopting a ‘black and white’ moralistic approach to questions of international law – especially in connection with the Israel- Palestinian conflict – were laid bare by Prof. Michael Curtis of Rutgers University in a groundbreaking article in 1991. To paraphrase Curtis, dogmatic generalisations about the legality or illegality of Israel’s West Bank settlements belong in the realm of polemics, not serious legal analysis.
The basic error is to treat all the settlements alike when commenting on their international legality. For example, settlements that have been built without the authorization of the Israeli government have been held by the Supreme Court to be illegal even under Israeli domestic law. Conversely, Cambridge University Prof. James Crawford, who is one of the world’s most eminent international lawyers and is generally critical of Israeli policies, published a legal opinion in 2012, in which he concluded that some of the settlements, such as those of the IDF’s Nahal outposts are “probably lawful.”
The whole question of the international legality of settlements is fraught with complexity – which is one of the reasons Crawford’s opinion runs to 60 pages. He and others have argued that Article 49, paragraph 6, of the Fourth Geneva Convention (Geneva IV) prohibits civilian settlements. It states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Nobody suggests that the Israeli government has deported settlers to the West Bank. The legal question is whether by sponsoring and financing civilian settlements, the Israeli government has carried out a population “transfer.” In its advisory opinion in 2004, the International Court of Justice (ICJ) answered this question in the affirmative.
The late Julius Stone, an outstanding Australian international jurist, had a contrary opinion. His view was that a population “transfer” within the meaning of Article 49(6) requires a “magisterial act” or fiat by the government of the occupier state. In his view, which is still shared by many eminent international lawyers, mere sponsorship and benefits do not amount to a population “transfer.”
In any event, the ICJ’s advisory opinion was just that – a non-binding opinion. Like the endlessly repeated UN resolutions on the subject referred to by Kretzmer, it has no legally binding effect. In fact, the ICJ’s conclusions were subjected to some serious criticisms, not least because the questions referred to it by the UN General Assembly were so loaded with tendentious assumptions as to prejudice fair determination of the issues.
The ICJ also failed to consider the effect of the original League of Nations Mandate of 1922, which recognized “the historical connection of the Jewish people with Palestine” and authorized “close settlement by Jews on the land, including State lands and waste lands.”
When the UN replaced the League in 1945, the Mandate continued to operate by virtue of Article 80 of the UN Charter. Kretzmer waves this history aside as having been made irrelevant by the establishment of the State of Israel in 1948 as the State of the Jewish people.
He leaves unanswered the opinion of Eugene Rostow, a former Dean of Yale Law School and US Under Secretary of State for Political Affairs, that because the West Bank is an unallocated part of the British Mandate, its terms still apply to that territory and settlements can continue until a new state is created or an annexation takes place.
The misuse of international law as a tool of political condemnation is especially unhelpful right now while Israeli and Palestinian representatives attempt to negotiate comprehensive terms of peace on the basis of “two states for two peoples.” Moralistic polemics about the settlements is the last thing needed by negotiators on either side, and will simply make it politically more difficult for Palestinian leaders to agree to a land swap arrangement, a sine qua non of any final peace agreement.
Attorney Peter Wertheim is the Executive Director of the Executive Council of Australian Jewry
@ yamit82: The Jewish People, through the government of Israel have this land under “Military Occupation”though not a “belligerent occupation”, and the Jewish People are building houses on it. It seems to me that is a pretty strong assertion even though they haven’t used the words “sovereignty”. They are exercising sovereignty even though they do not assert it. It is not a belligerent occupation because that requires that the previous occupant did have sovereignty and the Jordanians were illegal occupants having gained control through an aggressive war of the Arab Legion in 1948.
The 1907 Hague Convention provides in pertinent part:
Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.
Art. 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall 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.
Jordan was not a “legitimate power” as it had acquired the territory from the Arab Legions aggressive war.
By its unified control of this area since 1967 the Jewish People, in my view, have cemented their sovereignty. That the Soviets and Russia and the Arabs have complained for all this time, and have persuaded others to complain, is not relevant to this question. But if the Government of Israel were to assert “sovereignty” under that therm, efforts of other states to push it into a “two state solution” would then be an unlawful interference into their internal affairs and it would cement the position that the quest for Arab political self-determination in that area was internal rather than external and therefore a push for secession..
@ dweller:The Ottomans joined in on the German side. Germany and Austria started WWI seeking to dominate Europe according to Max Hastings, a noted military historian who studied that period. Sir Max Hugh Macdonald Hastings, FRSL, FRHistS is a British journalist, editor, historian and author. See: Catastrophe 1914: Europe Goes to War by Max Hastings.
dweller Said:
On your backside and your ego. Oops libido too.
dweller Said:
But you know, you love it.
@ yamit82:
As I often refer to as “G-d given rights” that cannot be abrogated.
Arabs in Israel is like a square peg trying to wedge into a round hole. (bottom line they are a pain in the ass to say the least)
Israelis are G-d fearing peaceful people who want to be left alone, they have seen enough greif.
The Arabs (mostly muslims), well I don’t have to tell you, just look around the world and they are trouble with a capital T.
They treat their women and children like crap. They bring hate and trouble where ever they reside.
Arabs and Jews don’t mix, kinda like water and oil.
Countries that once welcomed them want them out.
@ dweller:
yamit82 Said:
Derech Eretz
“derekh eretz? I think you mean: Dina de-Malkhuta Dina”
Yes, strictly speaking.
Nice try but no brass ring.
You expect any reader to understand “Derech Eretz” but not “Dina de-Malkhuta Dina”? You don’t understand the terms either as you are mixing apples and bananas. 🙂
learn something not in Wikipedia as your ref source.
Salubrius says:
SUMMARY AND CONCLUSION
Rights not claimed or asserted are no longer legal rights after so much history, events and later agreements entered into with no references to the original and basic legal claims by some late comers to this issue.
If Jews can return after 2000 years, certainly Arabs can return after 65.
99% of the world including most Jews would agree with that position.
The only position not yet put forth is that the land of Israel including the territory under the Mandate is ours by virtue of the mandate given the Jewish people by the creator of all things and that the deed to that mandate is written down in a book recognized and accepted by at least half the populations in the world.
Salubrius says:
This line jumped out at me.
The rest of the comment was, as always, closely reasoned & well researched.
But how does one characterize the effort against the Ottoman Empire as “defensive”?
The Ottomans were, after all, rather late to the fray. . . .
The legality is not that complex. Here is a summary and conclusion to both the background of the Jewish People’s sovereignty over the West Bank, and the so-called “Palestinian’s alleged inalienable right to self-determination under both natural law and International Law. These are given in greater detail in two longer articles I have written. One is entitled “Roots of Israel’s Sovereignty and Boundaries under International Law: In Defense of the Levy Report, and the other is entitled: Palestinians and Their Alleged Inalienable Rights of Self Determination under International Law.
SUMMARY AND CONCLUSION
In 1920 at San Remo the Jewish People were recognized by the Principal Allied War Powers in WWI as owning the political rights to Palestine; the competing Arab claims also submitted at the Paris Peace talks were implicitly denied in Palestine but recognized in the rest of the Middle East, i.e. Syria & Mesopotamia and, indirectly later in Transjordan. The Allies had conquered this area from the Ottoman Empire in a defensive war. Their ruling was based on the historic association of the Jewish People with Palestine in which there had been a continuous uninterrupted Jewish presence for 3,700 years. In 1922 this political right was recognized by 52 nations but limited to Palestine west of the Jordan River. The rights were required to be placed in trust until the Jewish People attained a majority of population in the area in which they were to exercise sovereignty and were capable of exercising sovereignty in that area.
In 1948 the trustee abandoned its legal dominion over the political rights that were in trust and the Jewish People had established unified control over Palestine west of the Jordan River with some exceptions. Just after it had declared independence in that year, the Jewish People’s State of Israel was invaded. Judea, Samaria, and East Jerusalem were invaded by the Arab Legion supplied and led by the British; they became illegally occupied by Jordan, and the Gaza Strip was similarly invaded and illegally occupied by Egypt. By 1950 the Jews had also attained a Jewish majority population in the remaining area. With both a majority population in the area governed and the ability to exercise sovereignty, the political rights to that area vested in the Jews so they had legal dominion over them and the Jews were then sovereign in that area. Following 1967 the Jewish People had annexed East Jerusalem; in 1967 it also liberated the other areas that had been illegally occupied. Later, in 2005 the Jews withdrew from the Gaza Strip.
It follows that now the Jewish People have sovereignty over Judea, Samaria and East Jerusalem as well as the territory within the Green Line because they own and have legal dominion over the political rights to these areas and have established unified control over them even though they have not as yet asserted that sovereignty except for East Jerusalem.
International Law does recognize the right of political self-determination in the case of colonies external to the areas from which they are ruled. This is referred to as “decolonization”. International Law supports decolonization. The quest for the right of political-self determination of a group of people in an area internal to the boundaries of a state that has sovereignty is referred to as “secession”. A secession would violate the territorial integrity of a sovereign state.
Effective as of 1976, International Law recognized the right of a “people” to political self- determination but it did not provide any indication of where that rule would be applied. In any event, the so-called “Palestinians” do not meet the test of a legitimate “people” but are, in fact, an undifferentiated part of the Arab people residing in Palestine who were invented as a separate “people” by the Soviet dezinformatsiya in 1964.
In a decolonization, International Law gives preference to self-determination over territorial integrity. International Law regarding secession of an area internal to a state is a wholly different matter. The right to secede is not a general right of political self-determination for all peoples or nations. It is limited by the territorial integrity of a sovereign state. The unilateral right to secede, i.e. the right to secede without consent from a sovereign state, if it is to be recognized, say most commentators on International Law, should be understood as a remedial right only, a last resort response to serious injustices. In addition, those wanting to secede must show they have the capability of exercising sovereignty.
There is no evidence of serious injustice to support such a remedial right for the Arabs residing in Judea, Samaria and East Jerusalem although they have long complained of perpetual victimhood. Nor do they have the capability to exercise sovereignty such as unified control over the area they wish to have designated as an independent state.
It follows that the so called “Palestinians” have no right to political self determination under International Law.
yamit says:
Yes, strictly speaking.
But when choosing terminology that may be more obscure or accessible to some, I try to allow for the occasion & the sophistication of the specific audience.
Derekh eretz is remote enough in most circles.
— Why venture into the arcane if you can make the same general point without the excursion?
The issue under discussion related to Rothstein, Segal, Lansky, et al., and the question of whether they reflect my thesis that Jews need to know themselves ‘lawful’ before stepping out — particularly on a matter that might find them at odds with the general flow — and be willing to fight over it.
Derekh eretz — the ways of a community, its customs, mores, approaches to manners, etc — is really, in a sense, just another of those various kinds of law I listed above, albeit more cultural than legal. Lansky & Segal had their own code of conduct, their own derekh eretz, as it were — and it meant something to them.
yamit says:
A lame excuse to cover your butt, Yamit. You always find one (whatever’s handy) to justify raising the issue of me & prison. I repeat, you’re like a dog with a foxtail in his ear.
No. Roughly a third of those who ‘served’ were draftees.
Since most of those who served knew there was something dreadfully WRONG with the war, most of those who were “called” — and ‘served’ anyway — were cowards. That’s what the word means.
What’s more, I knew guys who obeyed a draft notice, or even volunteered, precisely because they were afraid of being thought cowards if they DIDN’T go. That’s the height of cowardice.
Newsflash (since you obviously never got the bulletin):
In the USA, the US Constitution is the supreme Law of the Land.
Any law which is repugnant to the Constitution is ITSELF unlawful, and accordingly it is null-&-void.
Military conscription, as applied to the Vietnam War was unconstitutional, a violation of the 13th amendment prohibiting INVOLUNTARY SERVITUDE
— which is reserved strictly as a punishment for conviction of felony. Not exactly an honor. . . .
That’s why I didn’t accept deferments or exemptions (of which I was entitled to several).
That’s why I didn’t run off to Canada, or underground, or overseas.
That’s why I spent three years of my life — before I was even INDICTED — organizing, speaking, writing, visiting univ campuses & high schools: helping everybody I knew to extricate himself, and everyone HE knew, from the Selective Service System, whose Director, Lewis Hershey, characterized it as “the club of induction.”
And by “club,” he wasn’t referring to a small circle of friends. . . .
“Something’s lost — but something’s gained — in living every day.” There’s always a trade-off.
By bringing popular sentiment into opposition to that war, we ended US involvement, and saved countless more lives than might have been lost in the way you posit. The alternative was to let it go on as it had.
Your attempting to link me with them has it ass-backwards: The turth is, if there had been more “dwellers,” there would’ve been fewer of the other three you mention.
Not so. Those who are running America were NEVER my crowd, even back then. We fought them tooth-&-nail, but there were always more of them than there were of us — even though it was WE who provided the inspiration that brought the country around to rejecting that war.
The ding-a-lings running the country now just piggy-backed their way onto the momentum we created. It’s an old story.
Still, as few as we were, we accomplished a great deal. (We could’ve used your help in keeping those turkeys from hijacking the movement to their own ends. But you were A.W.O.L., it seems.)
Really? — when was that?
So you would have counseled Dr King against violating the Jim Crow statutes?
Mass disobedience only “destroys” when the disobeyer tries to evade the legal consequences associated with disobedience.
If you break the ‘law’ and RUN, it’s quite different from breaking the ‘law’ and staying to face the music.
honeybee says:
“Really,” eh? — and where might THAT be?
honeybee says:
When do I not respond to ANYTHING vociferously?
That’s wishful thinking on your part, Twinkie.
Truth is, there are LOTS of things that really DO “knaw at [my] soul” — but that’s not one of them.
honeybee says:
The expression was around for at least a couple decades before “yuppie” ever came into usage.
(Are you thru with your day’s quota of teasing, or are there more of such insects to be brushed away?)
@dweller: “Lit’le ol’winemaker. Goodness sake Dalin, how yuppie can you be.
dweller says:
You brought up the issues of necessity of belief and obedience to Law since at peak only about 20% of those who served were draftees and most who were called served and since the Law of the Land required those called to serve you were a Law breaker no different from any other lawbreaker or criminal.
Your opting out by your declared proud act of cowardice meant that he who replaced you could have been one who never came back or came back not whole. You are thus no better than a murderer no matter how you justify your cowardly traitorous act. There was a time when even the USA shot those like you.
There are many laws and rules I don’t like but I obey them because mass disobedience of Law destroys the social, political and moral order of that society, and you eventually get Clinton’s,Bush’s and Obama’s and “dwellers” as a consequence and all they contribute to the final destruction of a once great nation. The “Hell No We Won’t Go” crowd are now running America. How are they doing???
derekh eretz???
I think you mean: Dina de-Malkhuta Dina
http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0005_0_05228.html
All agree that the principle does not apply to religious or ritual observances
If its Yamit own scab he is picking, why do you always respond so vorificily, Silly. Make one think it doth knaw at your soul.
dweller has to hunt them!!!!!!!!! Boy howdy dweller I really stung you where it hurts!!!!!!!! Sweetie
Dear Arnold, I was taught by my Father,that I must alway respect American Indian and their culture because without their “genorasity” in allowing us to share their land, we would have been so ash in air over Poland.
honeybee says:
And here I was thinking you were speaking of yourself.
Silly me.
honeybee says:
Oh, they told you that, did they?
“Hunt” them for what?
meat?
fur?
hides?
tusks?
ambergris?
Yamit says:
That’s just Yamit’s way of acknowledging (quite in spite of himself) that HE’d have never had the courage to do the “time” that this li’l ol’ winemaker, dweller, quite freely (even joyously) did.
I have no problem addressing the matter when it comes up, because I’m quite proud of it
— but I can also let pass the urge to brag about it.
Not Yamit, however. He brings it up every chance he can (and it’s virtually ALWAYS he, not I) that introduces it to the discourse.
Because it sticks in his craw like a foxtail in a hound’s ear
— and shake it this-way-&-that though he may, he can’t shake it loose. In fact, the more he shakes it, the deeper it buries itself inside him. . . .
It is Yamit’s OWN scab that he’s really picking at — nobody else’s.
honeybee says:
No need to be. It’s an expression I’ve used lots of times on this site.
Use the search engine on the front page, and see for yourself.
honeybee says:
You obviously don’t understand the concept of “legal standing,” so I’ll let it pass. (There are plenty of lawyers who frequent this site, and any one of them can explain it better than I.)
In any case though, I assume you MEANT to ask something on the order of how those three men reflect what I said about how “The Jew NEEDS to know that he stands on firm legal ground when he steps out…etc…”
If that’s what you intended to ask, the answer is that there are many kinds of law — international law, natural law, Jewish law, equity law, etc.
Within the context of Segal, Lansky & friends, they had their own code of ‘law,’ as it were. It’s not the code that most Jews relate to, but that’s beside the point. (Most Jews don’t relate to Jewish Law either.) But they do relate to the law of the land, derekh eretz,wherever they live.
And since most countries regard themselves as (for better or for worse) part of the international community, most Jews relate to international law. So Jews in the main need to believe that what they do and are is lawful in that context.
dwellerSugar Pie; just for you, baby http://youtu.be/bw4pnQNbBxE
I’d forgotten that.
I get that, and was aware of it.
That part of my comment was grounded in — and aimed at — the perversity of the arrangement.
Yamit says:
More, apparently, than PresentCompany knows about elephant shit. . . .
Exactly what “shortcuts” are you talking about?
If I’ve cited any facts that you believe are strictly conjured up, you’re always welcome to show me how and why they’re ‘not’ facts.
Meanwhile your OWN assertions about me remain themselves nothing more than JUST that: assertions.
Well, that, and a hefty dose of wishful thinking.
BUGSY SIEGAL: A RIGHTOUS JEW [and good looking too] nice blue eyes!!!!!!!!!!!!!!
Salubrius #22 “Only the rocks live forever” Lakota saying!!!!!!!
@Yamit #20 Boot, Gerorge Strait Hat, the ladies went for him like flies to honey. We were a very ritzy shopping are in Denver. The ladies were blond and zoftig. Tex was a gentleman. I stood back and watch with amusedment. Happens often!!!!!!! I bet you hae the same problem,can’t keep the ladies of you!!!!!!
dweller has to hunt them.
Salubrius says:
“But They Were Good to their Mothers” Some have observed that, despite their disreputable behavior, they could be good to their people, too.
http://www.solveisraelsproblems.com/american-jewish-mobsters-of-the-1920s/
“Jewish gangsters also helped establish Israel after the war. One famous example is a meeting between Bugsy Siegel and Reuven Dafne, a Haganah emissary, in 1945. Dafne was seeking funds and guns to help liberate Palestine from British rule. A mutual friend arranged for the two men to meet. “You mean to tell me Jews are fighting?” Siegel asked. “You mean fighting as in killing?” Dafne answered in the affirmative. Siegel replied, “I’m with you.” For weeks, Dafne received suitcases filled with $5 and $10 bills — $50,000 in all — from Siegel.”
Buggy murdered at 41, Rothstein at 46.
honeybee says:
Out of the above only dweller did time proving he ain’t no real Jew at least a smart one.
honeybee says:
What, was he wearing a dress?
@ dweller: What,pray tell, legal standing did Myer Lansky, Busy Segal and Arnold Rothstein need?
If you watch American non-cable “family TV” or commercials, men are either gay or fools. Our president is effeminant. What a loss to our nation. Tex has been attack by femminist[which he loves]. He was in fact, mobed by a group,they pushed me out of the way. I think someting sexual may have been going on due to his attire.
@Yamit 82: Greco-Roman wrestling, I believe, is back due to protest. Odesseus through the discus to prove his manhood.
honeybee says:
Yamit 82: re: football: http://www.amazon.com/exec/obidos/ASIN/1621571556/thedaical-20
___________________________________________________________________________________________________
A Nation of wusses. The are eliminating Greco-Roman wrestling from the Olympics. Replacing it with bowling, Golf and Foosball.
Time to remove any references to the original Greek concept of sport which were competitive games demonstrating an individuals skills & prowess as a warrior.
dweller says:
But since when does a Justice Minister — presumably an interior position — get to make deals & offers across a country’s political borders?
That’s the province of a Foreign Minister, and THEN only with the say-so of the PM.
BB is acting foreign Minister and he appointed with the approval of his coalition partners Livni to negotiate. He partners Livni with his personal envoy and personal attorney Yitzak Molcho. Anything Livni does is with the approval of BB. I thought you knew these elementary factoids about Israel? 🙂
I was reading an article on Yahoo about biblical archaeology and the discovery of a town some think goes back to your yeshu.
http://www.livescience.com/19830-christian-ossuary-random-squiggles.html
Below was a link you might enjoy at least find interesting. 😉
http://www.livescience.com/13711-jesus-christ-man-physical-evidence-hold.html
@ Yamit 82: re: football: http://www.amazon.com/exec/obidos/ASIN/1621571556/thedaical-20
@yamit 82: One man’s opinion, We Darlin, are evil twins!!!!!!!!!
dweller says:
One man’s opinion, of course. Trying to conjure up shortcuts around that is tantamount to daydreaming.
You are entitled on this site to your opinion but not your facts. You can return to your usual daydream like state of existence.
dweller says:
“One man’s opinion” Such modesty,Sugar,Iam impressed!!!!!!!!!!!
@ ArnoldHarris:
For everybody except Jews, that’s true.
They were made special; created from scratch. And as a result of that, they have certain peculiarities which cannot be overlooked.
The Jew NEEDS to know that he stands on firm legal ground when he steps out. THEN it doesn’t matter what the world thinks (or says it thinks).
— But not until then.
Of course.
But to persuade Jews to fight (howsoever you define the word) — to persuade THEM to exercise that “power” — you’ll have to take the time & tsouris to ADDRESS those pesky “supposed legalities.”
Trying to conjure up shortcuts around that is tantamount to daydreaming.
One man’s opinion, of course.
@ Shy Guy:
Looks like dippy Tzippi is at it again.
Youthful rebellion against Daddy, prolonged past early adulthood & projected onto a geopolitical canvas; most regrettable.
— The elder Livni must be rolling over in his grave, about now.
But since when does a Justice Minister — presumably an interior position — get to make deals & offers across a country’s political borders?
That’s the province of a Foreign Minister, and THEN only with the say-so of the PM.
@ ArnoldHarris:
Brilliantly explained, as always, ArnoldHarris. Why is it so self-evident to us in North America and so foreign and unthinkable to Israelis? Or just to Israel’s leaders?
In an article published as The Future of Palestine, the late Eugene Rostow published an excellent opinion on this question. A summary of his opinion:
“The mandate implicitly denies Arab claims to national political rights in the area in favour of the Jews; the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to the land. Lord Curzon, who was then the British Foreign Minister, made this reading of the mandate explicit. There remains simply the theory that the Arab inhabitants of the West Bank and the Gaza Strip have an inherent “natural law” claim to the area. Neither custom ary international law nor the United Nations Charter acknowledges that every group of people claiming to be a nation has the right to a state of its own.” My own article “Roots of Israel’s Sovereignty and Boundaries in International Law: In Defense of the Levy Report” fills in the details. In an earlier article published circa 1980 in 5 Yale Studies in Public Order, 1979-1980 Rostow examines a claim for Arab political self determination more closely. This is entitled “Palestinian Self-Determination”: Possible Futures for the Unallocated Territories of the Palestine Mandates. He shows that Soviet Russia is pushing this as part of its program to establish hegemony over the Middle East. He said that Soviet control of the Middle East would lead inevitably to further accretions of Soviet power if China, Japan, and many smaller and more vulnerable countries should conclude that the US had lost the will or the capacity to defend its vital interests …” He says that “The exploitation of Arab hostility to the Balfour Declaration, the Palestine Mandate, and the existence of Israel has been a major weapon in the Soviet campaign to dominate the Middle East.
Over time, natural law has been incorporated into International Law. The Arabs, and Soviet Russia, have been saying that the International Law claim of the Palestinian Arab People is based on their right to their “inalienable right of self determination”. That claim has never been traversed by Israel. Such a right of a “people” is recognized as a “principle” in the UN Charter and such a right for a “people” in the International Covenant of Civil and Political Rights, and also in the International Covenant of Economic and Political Rights. None of the conventions establishing the “right of political self determination” say who is entitled to enforce that right or when it is to be applied. However in 1975, a limitation was announced in the Helsinki Final Act restating the proposition of territorial integrity that has been observed since the new world order established in 1648 after the Peace of Westphalia. See: Hill, Trial of a Thousand Years: World Order and Islamism. And there is also in the UN Charter, Article 80 that saves political rights established by the League of Nations. Finally, they are saved by the doctrine of acquired rights, now codified, and by the doctrine of estoppel. So there when there is tension between the right of political self determination and territorial integrity of sovereign states no mater how they were formed, territorial integrity trumps the right to political self determination.
When is that? First there are two different situations that are covered. One is decolonization where the right being asserted is “external” to the affected sovereign and the other is secession where the right asserted is “internal”.. If the right to political self determination is that of a colony than the right of the people in that colony for self determination has prevailed. However if the right of self determination is that of a group of people within the boundaries of an existing sovereign, they almost always lose although the commentators suggest they should win if they are sorely oppressed.
What to make of all of this. First, the Arabs in Judea, Samaria and East Jerusalem are not a “people”. They are an invented people. Second, available evidence shows they are not oppressed but massive propaganda by the Soviet Union and by Arabs have established a Narrative of Perpetual Palestinian Victimhood that can’t be dented by facts, reason or logic according to Shelby Steele that you can find online in the Gatestone archive. But when you compare it with actual facts that you can find in George Gilder’s The Economics of Settlement and Efraim Karsh’s “What Occupation” both online, you will find that instead of what happened in 1920, 1948 and 1967 being a “nabka” or catastrophe, they were in fact a “mitzvah” or blessing given by the Principal Allied War Powers and by the Jews to the Arab inhabitants of Palestine west of the Jordan River. I am current writing an article on this subject of the Arab claim under the right of self determination. I think I will conclude that by enacting the Levy Report and annexing Judea and Samaria, that Israel will improve its position vis a vis an Arab claim for political self determination because then it will more clearly be a move for secession rather than decolonization. However based on the Mandate for Palestine the Jews have had a beneficial right to political rights to Palestine since 1920 and this right as to Palestine west of the Jordan River was recognized by 52 nations.
Both the Jewish people and the Arab people put in a claim for the political rights to Palestine to the Principal Allied War Power in 1919 at the Paris Peace talks. The Allies acted on the competing claims at San Remo in 1920 by adopting, word for word, the British Balfour policy. That was a two step policy in which the first step was a beneficial interest for World Jewry in the political rights, but they were to vest in a legal interest when two standards had been met: When Jews attained a population majority in the area governed, and when they also had the capability of exercising sovereignty. The latter were requirements commencing in 1648 but were restated in the 1933 Montevideo Convention. To carry out this program the WWI Allies appointed Britain as a trustee over the political rights to Palestine. By 1950 Britain had abdicated its trusteeship, the UN had said in 1947 that the Jews were capable of exercising sovereignty, and in 1950 the Jews had attained a population majority within the Green Line or Armistice Boundary. Currently, the Jewish People still have the political rights to Judea and Samaria as well as East Jerusalem and are showing by a military occupation (but not a belligerent occupation) that they can and are exercising sovereignty over Judea and Samaria even though they have not proclaimed their sovereign in Judea and Samaria.
One last thought. Woodrow Wilson was the first person since John Locke to raise the right of self determination. Yet he approved the Mandate for Palestine, apparently looking not at the current population of Palestine in 1920 but the future projected Jewish majority after Jews in the Diaspora had returned to their historic country with Britain, as trustee and not as sovereign, in effect exercising rights of legislation and administration limited by the terms of the trust agreement or “mandate”. It appears he was focussed on that principle of political self determination as applied to Syria, Mesopotamia and Palestine as free from sovereignty of England and France or a principle of decolonization. This is shown by the briefing material carried by the US delegation to the Paris Peace talks. The United States had only 55 years before ended a massive struggle to retain people and territories from secession.
If Israel were to annex Judea and Samaria, interference of other states pushing Arab independence would be more clearly repugnant as interference in Israel’s internal affairs.
Building settlements for one’s own nation on lands taken in war from an alien and enemy nation depends strictly on the ability of the state in question to defend that action by armed force, if necessary, plus the inability of the conquered enemy to evict you and retake what had been their land.
It’s as simple as that. All the supposed legalities cited by Peter Wertheim are little more than courtroom eyewash. Or it would be, if sovereign states were compelled to justify their actions in courts of law.
The only consideration that counts is power. Either you have it or you don’t. Our American forefathers over some 300 years looted the entirety of North America and crowded the survivors of some hundreds of small less powerful native tribes lost their hands, their cultures, their rights to independence and their spirits were broken. We can and do fake our concern about all that, but the truth is, nobody among us whites who control North America really give a shit about what happened to the American Indians, except for expressing contempt for them when we drive through Gallup, New Mexico and watch them roll around in the gutters dead drunk.
So this is the way it really works. If you want to keep control of Eretz-Yisrael, you have to take the land from the Middle East equivalent of those American Indians, abd displace them with the usual beautiful modern Israeli cities, villages, commercial and industrial parks, and nature preserves that we have all come to expect. Just build these and populate them with Jews. Or the Arabs will despoil you and your children, and you then will be the Middle East version of the Cheyenne, Apaches, Zuni and a thousand or more other tribes, and you will wind up once again living like Tevye the fiddler in crummy and dirty little shtetls until the local Cossacks think the time has come to amuse themselves by killing you.
Arnold Harris
Mount Horeb WI
So much moderation today, Ted!
Who needs settlements when you don’t need the Jordan Valley?!
This is all so silly, there is not one single thing illegal regarding the so called Israeli settlements in the Disputed Territories, by every standard of international law, Israel has the legal right to even annex all of the Disputed Territories should she wish to. The EU and sometimes even the US use the Israelis settlements as a diplomatic and political tool to pressure Israel into policies which are against Israeli security and political interests, but this should not be confused with illegality. Even Israel uses the settlements as a diplomatic and political tool when it suits Israeli needs. Not that this matters at all, the Palestinians will never ever settle peacefully with Israel under any circumstances. All the Palestinians will accept is the destruction of Israel and the extermination of the Jewish People, with as much Jewish blood and fire as they can inflict.
Stone is correct and Crawford is fullovit.
The whole PURPOSE of the Fourth Geneva Convention of 1949 was to deal with the specific problems caused during WW2 by the actual & specific actions of the 3rd Reich to ORDER — i.e., to forcibly require — the movement of existing residents OUT of captured territories
— and to likewise Order — again, to forcibly require — the movement of its own citizens INTO the captured territory. Hence, Stone’s use of the term “magisterial act.”
That was what was meant by “transfer” and “deport.” Both acts are mandatory; neither act is “voluntary.”
Various GOI’s may (or may not) have muddied the waters somewhat by sponsorship & financing — but there is no way that these considerations can be stretched & contorted to a finding that they amount to the Nazi deportations & transfers that Geneva IV was created to outlaw.
And those who invoke Article 49 (6) in this context are thoroughly disingenuous.