aside The West Bank Story, Part X/ Israel’s Legal Theory Supporting Its Actions

israel-0930_obama-netanyahu

The next blog will cover Palestine’ legal argument for why Israel should end its occupation. But the following write up is a legal brief from Israel’s perspective as to why it is not letting the international community bar it from continuing to build new settlements in the West Bank. The source is http://www.acpr.org.il/ The Question of the Applicability of the Fourth Geneva Convention,on Occupation to Judea, Samaria and Gaza,Howard Grief ..Attorney 9/22/2008.

Legal Analysis

“At the conclusion of the Six-Day War, the territories of Judea, Samaria and Gaza were indeed placed under the authority of a “Hostile Army”, i.e., the Israel Defense Forces. However, these territories are not to be considered legally “under occupation”, unless they actually belong to either Jordan or Egypt.”

israel-abu_simbel_on_the_west_bank_of_the_nile_south_of_aswan“It is a well-known fact that though Jordan annexed Judea and Samaria on April 24, 1950, thus rendering this region a de facto part of the Kingdom of Jordan (i.e., the so-called “West Bank”), this unilateral annexation was never recognized as valid under the prevailing norms of international law, inasmuch as Jordan was an aggressor state in the Israel-Arab War of 1948 .”

“Thus Jordan never enjoyed sovereignty over Judea and Samaria (West Bank), while Egypt never even claimed it over Gaza. Since neither Jordan nor Egypt (nor the fictitious “Palestinian People”) were recognized sovereigns of these territories, they cannot be legally classified as “occupied”. The only recognized sovereign over those territories under international law prior to the Six-Day War was the Jewish People as determined by several acts of international law. The first such act was the Smuts Resolution of January 30, 1919 (the precursor of Article 22 of the League Covenant), which in referring to the term “Palestine” must be interpreted in conjunction with the Balfour Declaration of November 2, 1917, the Lloyd George-Clemenceau Agreement of December 1, 1918, and the Weizmann-Feisal Agreement of January 3, 1919.”israel-is-born-1948

“It is thus evident that “Palestine” is a reference to the Jewish People and not to the local Arab inhabitants of the country. The other acts of international law that confirm the Jewish
legal title to Palestine are the San Remo Resolution of April 25, 1920, the Mandate for Palestine of July 24, 1922, the Franco-British Boundary Convention of December 3, 1920 and the Anglo-American Convention Respecting the Mandate for Palestine of December 3, 1924.”

“Since Israel, therefore, did not occupy the territory of a previous foreign sovereign, but only re-possessed the territory that the Principal Allied Powers of World War I had resolved was to be part and parcel of the Jewish National Home, as subsequently confirmed by the League of Nations, the Fourth Geneva Convention was not applicable to Israel’s rule over Judea, Samaria and Gaza. Accordingly, it is absolutely false to assert that Judea, Samaria and Gaza are “occupied Palestinian territory”, “occupied Arab territory” or simply “occupied territory” as claimed in many UN General Assembly and Security Council resolutions as well as by the
Palestine Liberation Organization, the Palestinian Authority, the Arab League states, other governments and self-servingly, by the International Committee of the Red Cross.”

Gaza
Gaza

“Furthermore, when the Six-Day War broke out on June 5, 1967, there was no state in existence called “Palestine” whose territory could be considered “occupied” under international law, nor is there any such state even today, though if the Government of Israel continues to pursue the “two-state vision” of U.S. President George W. Bush, this state may yet emerge.”

“Despite the fact that Israel never occupied the sovereign territory of another Arab state or people, within the meaning of the Fourth Geneva Convention and the Hague Regulations, it has been falsely branded as an occupier of “Arab land”. This accusation has no basis in law but has persisted because of the false belief that has been nurtured since 1969 by the United Nations and the Arab States as well as the PLO, that Israel has conquered the national homeland of another people, the “Palestinians” who inhabit the non-existent state of “Palestine”. To dispel these falsehoods, it need only be remembered that Mandated Palestine was created in April, 1920 at the San Remo Peace Conference for the express purpose of the future independent state of the Jewish People, not for an imaginary people called “Palestinians”, whose existence as a separate nation was unknown during the whole
period of the Mandate, especially to the Arabs themselves.

West Bank
West Bank

Since Palestine was intended to be the Jewish National Home, the State of Israel, which inherited the national rights of the Jewish People to the country, can never be seen as the occupier of land that was specifically reserved for Jews and rightfully belongs, as a result, to Israel. It is only by ignoring these indisputable facts that the cry is incessantly raised that the “occupation” must end.”

“Sadly, Israel itself was in large measure responsible for allowing this false conception to take root, when during the Six-Day War it made the fateful decision to apply the laws of war to the liberated Jewish territories rather than the corpus of its own law, thus failing to incorporate those territories into the Jewish State. This convinced world public opinion, especially that of American and European leaders, that Israel is indeed an occupier of foreign lands.”

Golan Hts
Golan Hts

“To rectify this terrible mistake, which also violated existing Israeli constitutional law, Israel should not only strongly contest the allegation of “occupation” as baseless, but also pass
legislation affirming Israel’s national rights to all areas of the Land of Israel and making it a criminal offense to describe its presence and status in any part of the land as “occupation.”

“This will then prevent Israel’s Supreme Court and most academic jurists in Israel’s institutions of higher learning from further spreading this insidious libel, as they have incredibly done up to now, to the acclaim of those who favor the re-partition of the Land of Israel.”

Gaza
Gaza

“Finally, it should be noted that the legal term “occupation”, as defined in international law, refers only to the occupation by a hostile army of territory belonging to a state. It does not refer to the people living in “occupied territory”, who as non-nationals of the Occupying Power enjoy the status of “protected persons” under the Fourth Geneva Convention. In reconquering areas of the Land of Israel in June 1967, what the Israeli Defense Forces really did was “repossessing” lands International Red Cross, Jean Henri Dunant, a Swiss Protestant philanthropist, waged an unsuccessful campaign for the settlement of Jews in Palestine during the 1860s, even going so far as to establish an association for that very purpose. Herzl recognized Dunant’s unique efforts to promote Jewish settlement by referring to him as a Christian Zionist in his closing speech at the First Zionist Congress in 1897 in the Swiss city of Basle.”israel-palestine-dst-2012-gaza-and-west-bank-start-dst-on-march-30-2012

“The internationally recognized ever since 1920 as belonging to the Jewish People, as originally reflected by the Hebrew phrase for those lands: shtahim muhzakim (“held” areas). This stressed that it was land, rather than people, that was repossessed. It is therefore a gross misuse of the term “occupation” to refer to Israel’s “occupation of the Palestinian People”, even without considering the question of whether Israel is a true occupier of what is now mistakenly termed “Palestinian land”, i.e., Judea, Samaria (West Bank) and Gaza. To give a parallel example, the United States may be said to be a military occupier of Iraq, ever since it overthrew the cruel regime of Saddam Hussein, but it cannot be said to “occupy the Iraqi people”. Those who accuse Israel of “occupying Palestinians” are using false and illogical terminology that has no basis in any instrument of international law. This terminology represents an unwarranted and unauthorized change of meaning of the term “occupation”, in that it wrongly conflates two non-synonymous categories. In actual fact, Israel neither occupies the land of Judea, Samaria and Gaza (West Bank), the alleged homeland of the so-called “Palestinians”, nor does Israel “occupy” any nation of that name. Israel has a flawless legal right to govern all of the Land of Israel as well as all of its inhabitants, as the legitimate sovereign.”

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