Is the Legal System Acting Illegally? Part IIby Dr. Yoram...

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    Is the Legal System Acting Illegally? Part II
    by Dr. Yoram Shifftan
    Sep 06, '04 / 20 Elul 5764


    [Part one of this article can be read at http://www.israelnationalnews.com/article.php3?id=4147.]

    The Multiple Irrelevance of Article 49(6) of the IV Geneva Convention to the Territories

    Julius Stone writes as follows:

    "Perhaps the central current criticism against the government of Israel in relation to its administration of the territories occupied after the 1967 War concerns its alleged infractions of the final paragraph (6) of Article 49, of the Fourth Geneva Convention, Relative to the protection of Civilian Persons in time of War, of August 12, 1949. The preceding paragraphs deal with deportation or transfer of a population out of the occupied territory. The final paragraph (6) reads as follows: 'The occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.'"

    Julius Stone shows that it is not correct to use this paragraph, as it is done by Israel's enemies, to conclude that Jewish settlement in the territories is illegal. He writes:

    "It has been shown in Chapters 3 and 7 that there are solid grounds in international law for denying any sovereign title to Jordan in the West Bank, and therefore any rights as reversioner state under the law of belligerent occupation... Not only does Jordan lack any legal title to the territories concerned, but the Convention itself does not by its terms apply to these territories. For, under Article 2, that Convention applies 'to cases of... occupation of the territory of a High Contracting Party,' by another such Party. Insofar as the West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all."

    He also negates the applicability of the Geneva Convention of 1949 to the West Bank and Gaza under Israeli control in a footnote to Discourse 2: "Thus, under Article 2 of that convention, the convention applies only to occupation by one state of territory belonging to another High Contracting Party. Insofar as Jordan has, by virtue of the principle ex iniuria non oritur ius, no territorial rights in the territories concerned, the case would not fall within the convention."

    Jordan's sovereignty in the West Bank was not internationally recognized. Even Egypt did not recognize it. Since Egypt did not claim sovereignty in Gaza, the argument above applies even more forcefully to Gaza.

    Julius Stone further says: "It is also important to observe, however, that even if that point is set aside [i.e., that the convention applies only to the occupation of the territory of a High Contracting Party], the claim that Article 49 of the Convention forbids the settlement of Jews in the West Bank is difficult to sustain."

    He says:

    "It is clear that in its drafting history, Article 49 as whole was directed against the heinous practice of the Nazi regime during the Nazi occupation of Europe in World War II, of forcibly transporting populations of which it wished to rid itself, into or out of occupied territories for the purpose of 'liquidating' them with minimum disturbance of its metropolitan territory, or to provide slave labor or for other inhumane purposes. The genocidal objectives, of which Article 49 was concerned to prevent future repetitions against other peoples, were in part conceived by the Nazi authorities as a means of ridding the Nazi occupant's metropolitan territory of Jews - of making it, in Nazi terms, Judenrein."

    The language of Article 49, paragraph 6, too, makes it clear that it refers to forcible transfers, forbidding the occupying power to "deport or transfer parts of its own civilian population into the territory it occupies." This language makes it clear that the voluntary settlement of the territories by Jews is another context altogether from the forcible transfer to which the Convention applies.

    Julius Stone emphasizes that the main intent of Article 49(6) is to prohibit the coerced movement of the population of the occupant's own territory for the purpose of genocidal and other inhumane acts of the occupant's government, such as the "genocidal transfer of German Jews to Poland for destruction":

    "As contrasted with this main evil at which Article 49 was aimed, the diversion of the meaning of paragraph 6 to justify prohibition of the voluntary settlement of Jews in Judea and Samaria (the West Bank) carries an irony bordering on the absurd. Ignoring the overall purpose of Article 49, which would inter alia protect the population of the state of Israel from being removed against their will into the occupied territory, it is now sought to be interpreted so as to impose on the Israel government a duty to prevent any Jewish individual from voluntarily taking up residence in that area. For not even the most blinkered adversary of Israel could suggest that the individual Jews who (for example) are members of the small Gush Emunim groups, are being in some way forced to settle in Judea and Samaria (the West Bank)! The issue is rather whether the government of Israel has any obligation under international law to use force to prevent the voluntary (often fanatically voluntary) movement of these individuals.

    "On that issue, the terms of Article 49(6), however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever Judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories Judenrein, has now come to mean that Judea and Samaria (the West Bank) must be made Judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.

    "Common sense, as well as correct historical and functional context, exclude so tyrannical a reading of Article 49(6). So does the consideration, discussed at the end of Chapter 7 [the section entitled "Continuing Obligations of the Mandate" in pp. 121-123 of Stone's book], that Judea and Samaria (the West Bank) are residual areas of the original Palestine Mandate. As such, in Eugene Rostow's cogent view there examined, they have to be regarded as still subject to the substantive obligations of the that Mandate. Among these, the establishment of a Jewish national home, if not 'the soul of the Mandate' (as stated in the Permanent Mandates Commission in 1935), was at least its 'primary purpose'. A demand that this territory be kept Judenrein would be a gross travesty of this legal position, turning international law on its head."

    A government of Israel that adopts de jure the Fourth Geneva Convention will be committing such a "gross legal travesty, turning international law on its head."

    Julius Stone also says: "It is true that during its period of unlawful possession from 1948 to 1967, Jordan did apply a Nazi-type law of exclusion of Jews from Jerusalem and Judea and Samaria." The removal by Israel of the Jordanian discriminatory laws against Jews was equally lawful to "the allies in Germany in 1944 [who] provided immediately for the abolition of the basic Nazi discriminatory legislation."

    The intention of the present government of Israel to make part of Western Palestine Judenrein is doubly illegal. Because no part of the world should be made Judenrein, and also because Jews exclusively were given political rights in Western Palestine and Jewish national rights (JNR) call for the encouragement of dense Jewish settlement in (at least ) all of Western Palestine; i.e., international law is the opposite of the Road Map's prescription.

    The Confusion Between De Jure and De Facto Adoption of the Convention

    The enormity of the recommendation of the Ministry of Justice team that Israel adopts de jure the Fourth Geneva Convention is best seen by referring to Discourse 1 in Julius Stone's book (pp. 167-176). In the past, Israel's Supreme Court applied the customary law of belligerent occupation in its adjudication of specific cases in the territories as if it was, as it were, de facto, the basis for Israel's presence there. This de facto application of the Convention's humanitarian provisions in administering the West Bank and Gaza, without de jure recognition of the Convention, is somewhat analogous to the US regarding persons held at Guantanamo Bay, Cuba, as "enemy combatants", but nevertheless still endowing them with Geneva Convention rights. Israel always wanted to improve the life of the inhabitants of the territories (which she indeed substantially did in all spheres of life, including health and education) and also to cause the least possible disruption of their lives.

    Also, the government of Israel, in its great eagerness not to miss any opportunity for peace, was prepared to refrain from "cashing in" on its entitlements to the territories according to international law. It envisaged a future in which Israel might gift away some of its entitlements in Western Palestine according to international law for the sake of peace (this is, of course, extraordinary in view of the fact that four-fifths of the Jewish national home in Palestine was already a Jew-free area). It did not leave a stone unturned in its desperate attempts to get normal peace; i.e., one guaranteed by a piece of paper.

    When adjudicating on specific cases, volitionally applying de facto the law of belligerent occupation to the territories as if it were the law, the judges always carefully reserved their judgement, so as to allow Israel's territorial entitlements to these areas to be considered under other parts of international law than the rules of belligerent occupation. But the legal matrix set voluntarily for the court by the authorities themselves -- namely, that the court must decide as if the governing law were solely that of belligerent occupation -- created an irresistible temptation for incorrect versions of this legal matrix, which was used as a weapon of political warfare against Israel.

    According to this falsified version used by Israel's enemies "the most learned justices of Israel's own Supreme Court unanimously held that Israel's only territorial standing in Judea and Samaria (the West Bank) and Gaza under international law is that of a belligerent occupant; and that settlement of Jews in these territories or even tolerance of this by the authorities of the state, and any other activities of Israel there, are legally limited to those sanctioned by the stringent law of belligerent occupation." (As per page 175 in Stone's book.) In this context of Israel volitionally de facto applying the Convention, it was easier for Israel's enemies to invoke the 1949 Fourth Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, Article 49(6), that forbids the belligerent occupant to settle its metropolitan population in occupied territories.

    But Julius Stone is at pains to emphasize that Israel's territorial entitlements in Judea and Samaria (the West Bank) and Gaza are based on solid principles of international law. "They include (1) the rule that would attribute sovereign title in Judea and Samaria (the West Bank) and Gaza to Israel, by virtue of the fact that Israel is the state in lawful possession of territory affected by a 'sovereignty vacuum' (view of E. Lauterpacht); (2) the rule that in a situation of disputed sovereignty that state is entitled that can establish the best title thereto, a rule well recognized by the International Court of Justice; (3) the rule that a state in lawful possession of territory to which no other sovereign has a supportable claim of sovereignty is entitled to take the step of formal annexation; (4) the rule laid down by the International Court of Justice, that territories subject to a League of Nations mandate whose disposition has not been otherwise determined remain subject to the obligations of the mandate, here the mandate for Palestine of which the primary obligation was the establishment of a Jewish national home." (pp. 168-169, ibid.)

    Stone argues that the Supreme Court of Israel, far from dismissing such formidable bases of title, has carefully reserved the effects of such other rules when applying de facto the law of belligerent occupation. But if Israel will adopt de jure the applicability of the Fourth Geneva Convention in the territories, as suggested by the team in the Justice Ministry, this might well be interpreted as gifting away the four bases enumerated above for Israeli sovereignty in the territories. Such a gifting could also be gathered from the change in Israel's long-held position, a change that can be interpreted as the annulment of the former judges' reservations when they applied the law of belligerent occupation. It is hard to see how Israel could then resist the claim of Article 49(6) of the Convention that forbids the belligerent occupant to settle its metropolitan population in occupied territories.

    The departing legal advisor of the Ministry of Foreign Affairs, Alan Baker, has given a wide-ranging interview to Haaretz about the legal status of Israel in the territories (Haaretz, September 2, 2004). Although he is cool about the Ministry of Justice recommendation to adopt de jure the IV Geneva Convention, JNR are totally absent from his presentation. This self-defeating omission is in sharp contrast to the position of Julius Stone, who says for example that "interpreting the powers of belligerent occupants, it has no bearing, either one way or the other, on the more general and important questions, central to the body of the present work, as to what title and powers the state of Israel may have over the territories in question when all the rules of international law that bear on those matters are taken into consideration." (Discourse 1, p. 175, ibid.) The omission of these rules by Israel's own officials can explain not only the hatred of the outside world, but Israeli and Jewish self-hatred, too.

    [Part 2 of 3]
 
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