Archive for ‘UN & International Law’

April 4, 2012

ICC Denial to Palestinians is Proof Settlements are Legal – Part II

by Gedalyah Reback

What’s Customary about the Fourth Geneva Convention?

International Court of Justice

International Court of Justice

If the Fourth Geneva Convention is considered customary, then it shouldn’t matter if a party actually ever agreed to the treaty. Based on this logic, Israel and the Palestinian Authority (or any Palestinian militant group) would have to abide by it. But that doesn’t fully explain the opinion that Israel is still occupying a territory that isn’t its own. A more effective argument would be Israel doesn’t claim the West Bank, despite the settlements that exist there. No part of the West Bank or Gaza was ever annexed by Israel after the Six-Day War except East Jerusalem. Even though it strengthens Israel’s claim to the eastern half of the city, it still, apparently, doesn’t undercut the argument Israel is occupying territory that isn’t its own. So, it cannot be argued that Israel’s not annexing the West Bank is what makes the settlements illegal. If it did, all Israel would have to have done is annexed the land where houses were built. So what is the argument that Israel cannot build the settlements it has in the West Bank and that once existed in the Gaza Strip?

There is further precedent on the issue, going back to the Hague Convention of 1907. Though they are less than the 1949 rules, the 1907 rules define an occupying power and its responsibilities. But even in the most apparent of examples, post-World War II Germany, the Allied Powers never considered the 1907 rules relevant because they weren’t occupying a standing country – the Third Reich had been destroyed, so Germany, technically, ceased to be.

In an advisory opinion to the ICJ in 2004 on the legality of Israel’s barrier (intended to keep suicide bombers out of Israel), there is no explicit reasoning given to the application of the Fourth Geneva Convention other than its customary basis. By saying it might “alter the demographic composition of the Occupied Palestinian Territory and thereby contravene the Fourth Geneva Convention,” the court is assuming the reasoning is based on protecting Palestinian civilians. But this treatment assumes that many of the clauses in the convention are irrelevant. In fact, considering the convention customary is difficult because it has never been implemented formally in any other setting until the Israeli-Palestinian conflict. Even the occupation of Iraq by the US and UK, as argued by those two countries, didn’t fall under the convention’s jurisdiction. Ideas like this declare a state’s irrelevance. But then again, the advisory opinion of the court isn’t binding.

Jumbled

Mahmoud Abbas

In fact, it also cites a 1980 UN Security Council resolution that calls the settlement policy a “flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.” But that resolution isn’t binding. It was issued under Chapter VI of the UN Charter, which most international legal experts consider non-binding. It is the much rarer Chapter VII resolutions which are binding. Going further, it was an advisory opinion to the ICJ that considered the Chapter 6 resolutions binding. In effect, it would be one non-binding opinion solidifying that another non-binding opinion would actually be, well, binding.

For some reason, the ICC refuses to recognize Palestinians’ right to sue because there is no state. It would be a logical extension of the Fourth Geneva Convention understandings to extend it, but it hasn’t happened. The existence of a state is still relevant.

April 4, 2012

ICC Denial to Palestinians is Proof Settlements are Legal – Part I

by Gedalyah Reback

The West Bank is an Anomaly under International Law

International Criminal Court

International Criminal Court

The ICC refused to hear the Palestinian Authority’s case against Israel for Operation Cast Lead because, according to the court, the Palestinians aren’t a recognized state. That carries more weight than the court perhaps intended, since it seems to add validity to Israel’s argument that it has the right to build in the West Bank because the territory technically doesn’t belong to anybody.

The Israeli case for the settlements’ legal status is based on the Fourth Geneva Convention. More specifically Israel asserts that Article 2 of the Fourth Geneva Convention undercuts Article 49. Article 2 reads like this: “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party . . .” Article 49 says there shall be no transfer of the occupying power’s citizens to the occupied territory. Article 49 doesn’t bother making explicit the occupied territory belongs to the “High Contracting Party” mentioned in Article 2, because that would be redundant. The territory belonging to another country is a qualifier for the occupied territory being addressed in the Convention. Several international court decisions have not accepted this argument, but ex post facto provide no practical grounds (if any) for dismantling the settlements.

The argument though lacks the teeth that comes with the logic. It has been accepted by the United Nations and International Court of Justice that the conventions do apply to occupied Palestinian territory. The clarification has seemed necessary before because of this anomaly in the Israeli-Palestinian conflict. Otherwise, there might be an argument Israel occupied Jordanian, Egyptian and Syrian territory after the Six-Day War in 1967. But Egypt never claimed Gaza. Jordan gave up its claim to the West Bank in July 1988 in favor of recognizing the Palestinian Liberation Organization’s claim. But the PLO didn’t have the international recognition to back it up. Going further back, Jordan’s authority in the West Bank was only ever recognized by itself and by the United Kingdom. Even the PLO might have boasted more support than that. But it was irrelevant. By transferring Israeli citizens to the West Bank and Gaza Strip, Israel couldn’t have been said to be settling someone else’s territory.

The United Nations might have an older precedent to tangle with the settlements’ legality. The 1947 Partition enforced a Jewish state, an Arab state and an international (UN-administered) Jerusalem-Bethlehem. The agreement went into partial effect. Only Israel recognized it. As a matter of fact, the Fourth Geneva Convention didn’t exist before the end of the Israeli War of Independence. So, when the war ended after Israel had expanded its borders to the edge of the Old City of Jerusalem and in other areas, little could be said against Israel’s legitimate rule in the captured territories. The same went for Egypt and Jordan in Gaza and the West Bank, respectively. It was in August that year the 4th Geneva Convention took effect.

Yasser Arafat was aware of this political ambiguity in the 1980s. In 1989, a Palestinian Declaration of Indepedence (November 15, 1988), Arafat said Palestine would become party to the convention. The Swiss Federal Council, which administers the conventions, refused to say one way or another if the joining was legitimate, “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine.” If Palestine is not a party to the convention, how can its territory be occupied? Certainly, the Israelis who have settled in the West Bank or Gaza Strip

Regardless, the State of Palestine would not represent the Arab State the UN Partition Plan intended to create. That state never developed, and would be something wholly different than a brand new Palestinian state, in 1989 or even in 2012. The 1988 Palestinian Declaration of Independence bases its legitimacy on the original Partition Plan, but it presents infinitely unfair implications. Recognizing the declaration would open the door for countless retroactive actions by different countries, conflicting with 40 years of other developments. It would also open the door to Palestine trying to claim Israel occupied areas that belonged to it at the end of the 1948 War of Independence. As mentioned before, legally it would be problematic. More practically, no country has ever given a substantial argument against Israel’s continued rule in those conquered areas (see map below).

Blue areas went to Israel according to the 1947 Partition Plan.  Pink areas were conquered by the Israelis in the War of Independence.

Blue areas went to Israel according to the 1947 Partition Plan. Pink areas were conquered by the Israelis in the War of Independence.

Switzerland effectively said the same thing in 1989 that the International Criminal Court said this week in 2012. There is no clearly existing Palestinian state, and only UN recognition could create one. In the 65 years since the Partition Plan passed, no Palestinian state/Arab state in the former Mandate of Palestine has been recognized by the UN. The Palestinian Authority, recognized by Israel, has only had “observer” status, just as its earlier Palestinian representatives had before the Authority came to be in only 1993.

As much as international organizations recognize the Fourth Geneva Convention as applying to all occupied, non-annexed territory as a matter of customary law (“minhag” if you will), the Palestinian Authority’s best argument for statehood and sovereignty right now is based on the areas it polices – Area A in the West Bank. It cannot even claim Gaza as its territory, since it belongs to Hamas. That brings up other major legal and philosophical problems.

Even if the Palestinians’ independence was recognized on November 15, 1988, for the four months between Jordan’s relinquishment and Palestine’s independence, the only power that can be said to have true and undisputed control of the territory was Israel. At that point, no claim against Israeli settlements, at least until 11/15/88 could stand. It is only by custom that the idea Israel doesn’t belong there make sense. The continued insistence by international organizations and even the United Nations that there is no Palestine brings into question just when a country has the right to declare territory its own.

April 21, 2011

What are Israel’s Priorities?

by Gedalyah Reback


Netanyahu Looking Like a Wreck

This has dragged out too long. Just shut down the settlement expansion.

I have to admit, I am a Religious Zionist. Not all RZs support settlements, but most do . . . and but I do. The settlements actualize the imperative to settle the country. If the land is bought from a private owner, there is nothing stopping me from celebrating it.

I am also a realist. They give Israel some more breathing room territorially and reach at the negotiating table . . . that is until now.

Diplomatically, the comfort zone the country has had building them was probably going to decay – eventually. I think that point has come. The extra cards it gave Israel in negotiations do not mean anything if the world does not let you negotiate. This is not judging the settlements as legal or illegal under international law; nor moral or not; nor conducted while respecting private property or not. There is simply too little breathing room these days. Shut down the enterprise. Shut it down.

The prospects of international isolation are very real. While Jews worldwide and Israelis especially think the situation with the Palestinians as much more complicated than issues of independence and self-determination, the rest of the world simply does not agree.

The world simply prioritizes Palestinian independence over Israeli security. There is little Israel or the global Jewish community can do about it. We will, by majority, disagree with the planet on this. Public relations and negotiating tactics are out of step with global opinion. The country simply has been caught off guard by the drive toward Palestinian independence. With that, Israel ought to go with the flow and change its approach to the Palestinians. Allow the West Bank and Gaza Strip their independence, merely with the stipulation that border and refugee issues have not been finalized, and that goes doubly for Jerusalem. Just outright support it – just ask for some time to design a withdrawal plan.

I expect Netanyahu to say something like this soon. But as of now, he does not have the political foresight to out-pace this situation. The UN will recognize Palestine as an independent state. Even if the Syrian protests turn into a civil war and the world allows Israel more leeway in how it positions the IDF (i.e. in the West Bank), the pressure is just going to come back.

Building the settlements was the right idea. It expanded Israel’s physical territory. No one knew how far it would eventually go before it became too much of a problem. Given the situation, I am guessing this would be a time to consolidate what Israel has gained and re-focus on other issues. Israel has no vision for its future.

Everyone has been running too scared to choose the country’s path. What preparations have been made for Palestine actually becoming an independent state? What does that mean for the priorities of the Jewish State in such an event?

As for the country’s identity, what would be Israeli policy toward a Palestinian state; goals of Zionism; security and religious interests under Palestinian rule; and settling the Galilee & Negev?

The lack of priorities has left Israel unprepared for the “diplomatic tsunami” that seems to be headed toward its pristine Mediterranean beaches.

Will Israel try to get a million new Jewish immigrants? Will it expand its economic power? Its cultural influence? Settle disputes between Jewish denominations in Israel and reform civil law? Write a constitution? There are simply no goals. There is no clarity.

AND as for Religious Zionists: the West Bank and Gaza are still holy land – it’s not going anywhere – it will just be under Palestinian government. It cannot constitute a priority compared to Jerusalem on the one hand or domestic stability on the other. But when was the last time you heard a settlement leader talking about the Temple Mount instead of a less significant hilltop somewhere south of Hebron? Religious Zionist leadership is out of step with reality and has no vision for its community and its religious goals. Of all the priorities that are contorted, twisted and far from straight, theirs seem to be the utmost.

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