Jack Cohen – The Legal Status of the Settlements & Fantasy world
Professor Eugene Kontorovich of Northwestern Law School, Chicago, gave a talk on “The Legality of Settlements under International Law.” He also has several published articles and videos on YouTube.
Discussion of occupations around the world, such as Turkey in North Cyprus, Russia in Crimea, China in Tibet, are rarely prefaced by the term “illegal,” but Israeli settlements in the West Bank (Judea and Samaria) are invariably prefaced by the term “illegal” and then also usually “under international law.”
1. Opponents of Israeli settlements on the West Bank usually quote Geneva Convention IV, article 49-6, as their basis for claiming the settlements are “illegal under international law.” There is only one relevant sentence in this Treaty that states that “an occupying power shall not deport or transfer its own population into territories it occupies as a result of conflict.” Note that this sentence does not mention “settlements,” and further it applies to an “occupier” and to “transfer.” Israel is neither an occupier of this land neither is it transferring its citizens to the areas in question. Allowing one’s citizens to move into an area is not “transfer” under the terms of this treaty
2. This aspect of the Treaty has never been applied to any other State or conflict zone, and would require that Israel keep the territories it supposedly occupies free of its own citizens (Judenrein) from the time of occupation and forever. This is certainly never been asked of any other occupying power. Also, the Treaty only applies to contractual signatories, which does not include any local Arab or Palestinian entity. So this Geneva Convention simply does not apply!
3. As to the fictional “occupation,” there is a general principle under international law called “Uti Posseditis Juris,” (see IsBlog July 19, 2016) that any sovereign country that succeeds to a given territory in fact has the right to all of that territory. For example, where-ever a colonial power has transferred sovereignty to a new State, that State has the right to claim all the land that was occupied by the former colonial power, for example, Australia, Canada, New Zealand, Algeria, and so on. So Israel has the right to claim the whole of the former “Palestine Mandate” as it was in 1948.
4. Under the British Mandate (1922-48) granted to the UK by the League of Nations (and subsequently ratified by the UN) the West Bank was part of Mandatory Palestine. The idea of a “Mandate” was a compromise in order to satisfy the intentions of the British and French to occupy the lands of the former Turkish Empire and the insistence of US Pres. Wilson that the two European colonial powers not expand their Empires at the expense of the conquered indigenous peoples. Although the British tried to retain Palestine for themselves, they withdrew in 1948 and the Jewish State of Israel was declared. The only part of the Palestine Mandate that was not included in Israel was the West Bank of the Jordan River (and Gaza), that was illegally occupied by Jordan, and even the Arabs did not recognize this occupation. After the Six Day War of 1967, Israel recaptured this area and so it returned to its legitimate owner and so Israel cannot be termed an “occupier” of its own territory.
Following these legal arguments, one must conclude that Israel is not “occupying” the West Bank and it has a perfectly legal right to allow its citizens to settle and live in that area. All else is propaganda.
You start to think things are improving, and then you realize that strange things are happening and that things are pretty much the same as they always have been. For example:
1. Every six months UNESCO passes an anti-Israel resolution. The latest one passed this week denies Israel sovereignty over Jerusalem, even though you can go there and see for yourself that Israel does have control and sovereignty in Jerusalem. The fact is that this resolution has no legal standing, but they pass it anyway. This time Israel declared a Pyrrhic victory because the number of countries voting for the weakened resolution was reduced. Only 22 countries voted for the resolution, including the usual culprits, all the Arab and Muslim countries, plus a few enlightened progressive European ones, such as Sweden, that always support the rights of the oppressed, even if they are terrorists.
2. A new President declared a new “peace process” in the Middle East to resolve once and for all the Israel-Arab dispute. Haven’t we been here before, with Carter, Clinton, Bush and Obama. But, this time Trump is supposed to be different because he is a businessman and is looking for a pragmatic solution, any solution that is acceptable to both sides. And there was Pres. Abbas of the PA standing next to Trump repeating the usual lies, he is against terrorism (lie: he actively incites terrorism against Israelis), he wants peace (lie, he wants to destroy Israel), he educates his children for peace (lie: in the schools they teach children how to stab Jews). Of course, many people will accept his statements at face value, but lets hope that Trump and his advisers know better.
3. In Germany, a politician Sigmund Gabriel is running on a platform that includes anti-Semitism. What else is new. And in France, the final two candidates are a middle of the road conservative Macron and the far right Marine Le Pen. Who knows where the votes of those who lost in the first round will go. This wave of populism that brought Trump into the White House and Britain to Brexit is gathering steam. The National Front now has twice the support that it had in the last Presidential elections.
4.Hamas in Gaza issued an underwhelming new protocol in which they said they will no longer call for the destruction of Israel, but they recommitted themselves to the armed struggle as the only way to defeat Israel and attain their goals. Also, they did not formally modify their Charter, that still calls for the destruction of Israel. So it’s mere double-talk, smoke and mirrors.
With these fantasies going on in the world it makes one wonder what is in store for us.