There are a number of flaws
in the legal
arguments presented by Daniel Steiman. I
address here only one. Mr. Steiman argues in effect that the settlements (necessarily
those outsideJerusalem Israel
her citizens into occupied territory, because the facilitation of them constitutes
“a transfer by the Government of Israel.
The flaw is simply demonstrated. One
can offer a person a subsidy to move out of his house, but is that transferring them?
Hardly. The person who is offered the incentive makes their own decision to
move. The person can decline to move. The word “transfer” in this context
requires a Government decision that effects the move, and facilitation would
have to cross that line to constitute transfer by the Israeli Government.
arguments presented by Daniel Steiman. I
address here only one. Mr. Steiman argues in effect that the settlements (necessarily
those outside
her citizens into occupied territory, because the facilitation of them constitutes
“a transfer by the Government of Israel.
The flaw is simply demonstrated. One
can offer a person a subsidy to move out of his house, but is that transferring them?
Hardly. The person who is offered the incentive makes their own decision to
move. The person can decline to move. The word “transfer” in this context
requires a Government decision that effects the move, and facilitation would
have to cross that line to constitute transfer by the Israeli Government.
Whether it is good policy for
the State
of Israel to encourage settlement growth depends on a number of factors, all of
which should be debated, but to say, without qualification as Mr. Steiman does, that
all Jewish settlements in areas captured by Israel in 1967 are illegal is wrong
in law and actually acts as barrier to sensible political compromise.
of Israel to encourage settlement growth depends on a number of factors, all of
which should be debated, but to say, without qualification as Mr. Steiman does, that
all Jewish settlements in areas captured by Israel in 1967 are illegal is wrong
in law and actually acts as barrier to sensible political compromise.
Contrary to its pompous and
misleading introductory statement, what is abundantly clear to those who really
understand the relevant aspects of International law is that the article is a
transparent attempt to misrepresent the absolutely unquestionable legitimacy of
Israel
The author appears to be
oblivious to the fact that shortly before the publication of his false and
superficial article a detailed legal explanation signed by over 1,000 prominent
international jurists and legal scholars from over 20 countries was presented
to Katherine Ashton and other EU leaders. This paper sets out the relevant
aspects of international law which totally refute the assertions in the current
article. If the author wasn't aware of the paper and the glaring deficiencies
and faults in his explanation, the editors of the Jerusalem Post certainly
should have been aware of these problems. In these circumstances the
publication of such a misleading article was a serious mistake.
By totally disregarding
Israel's undeniable rights to the territory as confirmed by the League of
Nations in 1922 and affirmed in article 80 of the UN Charter, the article has
effectively presented a concoction of false and unjustified accusations, which
only compound the unjustified damage that has been caused by numerous ignorant
and confused attempts to address the situation in the past.
The assertions regarding the
security aspects of the settlements are also misleading as those assertions
totally disregard the reality that without continued Israeli control which is
assured by the settlements, the areas in question which are strategically
crucial to Israel's security would fall under the control of terrorists as
already happened following Israeli withdrawals from Sinai, Lebanon and Gaza.
From a positive perspective,
if the article is an indication of the only argument that Israel's enemies can
dig up, we can look forward to a time when the international legal community
will finally come to its senses and recognize the unquestioned legal basis of
Israel's rights so that the false and damaging accusations that have been raised
in the past can be properly abandoned in the dirt-bin of history where they
belong.
Guest Ian_D_T • a year ago
It is sometimes claimed that Jordan West Bank , was entitled at most to claim the status of belligerent occupant. In
its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the
matter of occupation applied to any armed conflict between High Contracting
Parties and that it was irrelevant whether territory occupied during that
conflict was under their sovereignty. The Israeli High Court of Justice itself
established that the application of the regulations depends on the effective
military control exercised from outside the nation’s borders, and not from
previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by
Jordan until 1967 – an occupation which was opposed by the local population at
the time, most of all by Fattah militants, to the point that King Hussein felt
obliged to impose martial law - does not justify the use of the expression
“disputed territories” in place of “occupied territories.” Even more so
considering that Israel Jordan West Bank ” and tried to reach a peace treaty after
the Six-Day War which would have returned, with modified borders, the West Bank to Jordan
Contrary to what you have
suggested regarding the relevance or otherwise of the status of Jordan's
illegal occupation prior to 1967, Israel's legal rights to the territory are
solidly established in International law arising out of rights created in the
framework of the League of Nations.
If you want to read an
excellent brief explanation I recommend the paper by
Howard Grief entitled: "Legal Rights and Title of Sovereignty of the
Jewish People to the Land of Israel Palestine
Guest Ian_D_T • a year ago
Ian, I beg to disagree. I
know Howard Grief's work quite well: it is not a serious academic work.
A short article on the issue
and on Howard Grief's thesis:
"A few days ago Australia
interview to The Times of Israel suggesting that, contrary to conventional diplomatic
wisdom, the settlements may not be illegal under international law. In these
last few years a growing number of politicians and scholars have expressed similar positions.
Many of them argue that the results of the 1920’s San Remo Conference and more
than this the inclusion of the principles contained in the Balfour Declaration
in the text of the Mandate of Palestine, assured to the Jewish people the
exclusive right to create their “national home” on “the
whole country of Palestine, not a mere part of it”.
interview to The Times of Israel suggesting that, contrary to conventional diplomatic
wisdom, the settlements may not be illegal under international law. In these
last few years a growing number of politicians and scholars have expressed similar positions.
Many of them argue that the results of the 1920’s San Remo Conference and more
than this the inclusion of the principles contained in the Balfour Declaration
in the text of the Mandate of Palestine, assured to the Jewish people the
exclusive right to create their “national home” on “the
whole country of Palestine, not a mere part of it”.
In this respect, the Levy
Report – released on 9 July 2012
by a special committee appointed in late January 2012 by Israeli Prime Minister
Benjamin Netanyahu – has represented a sort of “watershed”. It clarified
that “with the establishment of the United Nations in 1945, the principle of
recognizing the validity of existing rights of states acquired under various
mandates, including of course the rights of Jews to settle in theLand of
Israel
charter”. According to the Levy Report, Article 80 of the UN Charter implicitly
recognizes the Mandate forPalestine
by a special committee appointed in late January 2012 by Israeli Prime Minister
Benjamin Netanyahu – has represented a sort of “watershed”. It clarified
that “with the establishment of the United Nations in 1945, the principle of
recognizing the validity of existing rights of states acquired under various
mandates, including of course the rights of Jews to settle in the
charter”. According to the Levy Report, Article 80 of the UN Charter implicitly
recognizes the Mandate for
The late Eugene Rostow,
former dean of Yale Law School
that “a trust” – as in Article 80 of the UN Charter – “does not end because the
trustee dies”. Rostow’s argument, which is repeated in the Levy report, is that
although theLeague of Nations had ceased to exist,
the commitments of theLeague
of Nations remain binding.
that “a trust” – as in Article 80 of the UN Charter – “does not end because the
trustee dies”. Rostow’s argument, which is repeated in the Levy report, is that
although the
the commitments of the
These claims are marred by
several inaccuracies, starting from the
fact that the term “national home” had no mutually agreed upon meaning or scope and that the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions”
and contained safeguards for the rights and position of the non-Jewish
communities.
fact that the term “national home” had no mutually agreed upon meaning or scope and that the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions”
and contained safeguards for the rights and position of the non-Jewish
communities.
Furthermore, as David
Ben-Gurion clarified
in July 1947 in front of the UNSCOP commission: “The Mandate, in fact, does not
exist because it was violated by the Mandatory. We are not in favor of
renewing it. […] we say that the original intention and the need, and what in
our conviction is just, should be decided upon by the United Nations […] I said
we do not ask for a Mandate any more, so it is not a question. The question
does not arise on the Mandate”.
in July 1947 in front of the UNSCOP commission: “The Mandate, in fact, does not
exist because it was violated by the Mandatory. We are not in favor of
renewing it. […] we say that the original intention and the need, and what in
our conviction is just, should be decided upon by the United Nations […] I said
we do not ask for a Mandate any more, so it is not a question. The question
does not arise on the Mandate”.
Also
the assertion that article 80 of the UN Charter
implicitly recognizes the Mandate forPalestine
claimed. One of the legal advisors to the Jewish Agency, Jacob Robinson,
published a book in 1947 that presented a historical account of thePalestine
Question and the UN. He explained
that when the Jewish Agency learned that the Allied Powers had discussed at the
Yalta Conference (February 1945) a new system of international supervision to
supersede the system of mandates, the Agency decided to submit a formal request
to the San Francisco Conference (April-June 1945) to obtain a safeguarding
clause in the UN Charter. The proposed clause would have prevented a
trusteeship agreement from altering the Jewish right to nationhood secured by
the Balfour Declaration and the Mandate forPalestine
ignored the Agency’s request and stipulated in article 80 of the Charter that
the UN organization did have the necessary power to conclude trusteeship
agreements that could alter existing rights held under a mandate.
the assertion that article 80 of the UN Charter
implicitly recognizes the Mandate for
claimed. One of the legal advisors to the Jewish Agency, Jacob Robinson,
published a book in 1947 that presented a historical account of the
Question and the UN. He explained
that when the Jewish Agency learned that the Allied Powers had discussed at the
Yalta Conference (February 1945) a new system of international supervision to
supersede the system of mandates, the Agency decided to submit a formal request
to the San Francisco Conference (April-June 1945) to obtain a safeguarding
clause in the UN Charter. The proposed clause would have prevented a
trusteeship agreement from altering the Jewish right to nationhood secured by
the Balfour Declaration and the Mandate for
ignored the Agency’s request and stipulated in article 80 of the Charter that
the UN organization did have the necessary power to conclude trusteeship
agreements that could alter existing rights held under a mandate.
Robinson
tried to portray a legal setback as a victory and make everyone think that
Article 80 of the Charter accomplished the Agency’s stated objective. Indeed,
the final text adopted by the working paper for international trusteeship
contained an exception that allowed trusteeship agreements to do exactly what
the Jewish Agency had tried to prohibit. In Article
80’s words:
“Except as may be agreed
upon in individual trusteeship arrangements placing each territory under the
trusteeship system, nothing in this chapter should be construed in and of
itself to alter in any manner the rights of any state or any peoples in any
territory”.
tried to portray a legal setback as a victory and make everyone think that
Article 80 of the Charter accomplished the Agency’s stated objective. Indeed,
the final text adopted by the working paper for international trusteeship
contained an exception that allowed trusteeship agreements to do exactly what
the Jewish Agency had tried to prohibit. In Article
80’s words:
“Except as may be agreed
upon in individual trusteeship arrangements placing each territory under the
trusteeship system, nothing in this chapter should be construed in and of
itself to alter in any manner the rights of any state or any peoples in any
territory”.
Article 1 of General Assembly
resolution 24(I) reserved the right
of the UN to decide not to assume any function or power of theLeague of
Nations . On the 19th March
1948, during the 271st meeting of the Security
Council, US Ambassador Warren Austin cited UN General Assembly resolution 24(I)
and pointed
out: “The United Nations does not automatically fall heir to the
responsibilities either of the League of Nations or of the Mandatory Power in
respect of the Palestine Mandate. The record seems to us entirely clear that
the United Nations did not take over the League of Nations Mandate system”.
of the UN to decide not to assume any function or power of the
Nations
Council, US Ambassador Warren Austin cited UN General Assembly resolution 24(I)
and pointed
out: “The United Nations does not automatically fall heir to the
responsibilities either of the League of Nations or of the Mandatory Power in
respect of the Palestine Mandate. The record seems to us entirely clear that
the United Nations did not take over the League of Nations Mandate system”.
On top
of all these considerations, the above mentioned
thesis of “exclusivity”, besides being unjustified from an historical point of
view –Palestine
its entire history – is incorrect also from the legal perspective imposed since
the early stage byLondon
wrote in November 1920
that the commitment made byLondon Palestine
Declaration constituting it a National Home for the Jewish People”. Lord Curzon
corrected him: “No. ‘Establishing a National Home inPalestine
people’ – a very different proposition”.
of all these considerations, the above mentioned
thesis of “exclusivity”, besides being unjustified from an historical point of
view –
its entire history – is incorrect also from the legal perspective imposed since
the early stage by
wrote in November 1920
that the commitment made by
Declaration constituting it a National Home for the Jewish People”. Lord Curzon
corrected him: “No. ‘Establishing a National Home in
people’ – a very different proposition”.
The
British White Paper of June 1922 – the first document that officially clarified the interpretation of the
Mandate’s text – clarified
that the Balfour Declaration does “not contemplate that Palestine as a whole
should be converted into a Jewish National Home, but that such a Home should be
founded ‘in Palestine’”. Furthermore, it stressed – and this is perhaps the
most relevant aspect – that the “Zionist congress”
that took place in Carlsbad in September 1921 had officially accepted that “the
determination of the Jewish people to live with the Arab people on terms of
unity and mutual respect, and together with them to make the common home into a
flourishing community, the up building of which may assure to each of its
peoples an undisturbed national development”.
British White Paper of June 1922 – the first document that officially clarified the interpretation of the
Mandate’s text – clarified
that the Balfour Declaration does “not contemplate that Palestine as a whole
should be converted into a Jewish National Home, but that such a Home should be
founded ‘in Palestine’”. Furthermore, it stressed – and this is perhaps the
most relevant aspect – that the “Zionist congress”
that took place in Carlsbad in September 1921 had officially accepted that “the
determination of the Jewish people to live with the Arab people on terms of
unity and mutual respect, and together with them to make the common home into a
flourishing community, the up building of which may assure to each of its
peoples an undisturbed national development”.
It is
only in light on these clarifications that the preamble as well as Article 2 of
the Mandate text can and should be understood. It is noteworthy that Zionist consent to such interpretation was requested, and
received, before the Mandate was
confirmed in July 1922. In Weitzman's words:
“It was made clear to us that confirmation of the Mandate would be
conditional on our acceptance of the policy as interpreted in the White Paper [of
1922], and my
colleagues and I therefore had to accept it, which we did, though not without
some qualms”.
only in light on these clarifications that the preamble as well as Article 2 of
the Mandate text can and should be understood. It is noteworthy that Zionist consent to such interpretation was requested, and
received, before the Mandate was
confirmed in July 1922. In Weitzman's words:
“It was made clear to us that confirmation of the Mandate would be
conditional on our acceptance of the policy as interpreted in the White Paper [of
1922], and my
colleagues and I therefore had to accept it, which we did, though not without
some qualms”.
defend itself against fanaticism is something that any person interested in
peace cannot but support. Equally true is that the growing attempt to justify
the colonization of the Palestinian territories through a problematic
interpretation of history, international law, and international consensus is a dangerous threat that requires better public
understanding."
Under international law,
Arabs who lost their homes in 1948 as part of the original 2 state solution are
considered refugees - and yet thousands of Jews that were cleansed by Jordan
from Jerusalem and from the West Bank and replaced with Jordanian citizens -
who we today refer to as 'Palestinians' - in the same period are not similarly
considered refugees. Explain?
Guest aReefer • a year ago
Easy, peasy.
Refugees are no longer
refugees when they take citizenship of a state other than that they left.
Jewish refugees took
citizenship of Israel
What about the Palestinian
refugees in Arab lands who are purposely denied citizenship there? Because
their fellow Muslims deny them recognition, they remain the only refugees in
the world still in camps (and the reason the U.N. is going broke).
And I'd like to know what the
international community had to say--if anything--when Jordan West Bank and expelled all the Jews?
Guest sharonsj • a year ago
States that are hosting
refugees are not obliged to offer citizenship to those refugees, it being the
generally held consensus that they will return from whence they fled once it is
safe so to do. Palestine Israel Israel Palestine
I have no answer to your
final question because I do not know.
How interesting that the
author bases all his arguments on the Geneva Jordan Israel
Guest StanleyT • a year ago
It is sometimes claimed that Jordan West Bank , was entitled at most to claim the status of belligerent occupant. In
its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the
matter of occupation applied to any armed conflict between High Contracting
Parties and that it was irrelevant whether territory occupied during that
conflict was under their sovereignty. The Israeli High Court of Justice itself
established that the application of the regulations depends on the effective
military control exercised from outside the nation’s borders, and not from
previous sovereignty over the territory of a specific state (HCJ 785/87).
Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an
occupation which was opposed by the local population at the time, most of all
by Fattah militants, to the point that King Hussein felt obliged to impose
martial law - does not justify the use of the expression “disputed territories”
in place of “occupied territories.” Even more so considering that Israel Jordan West
Bank ” and tried to reach a
peace treaty after the Six-Day War which would have returned, with modified
borders, the West Bank to Jordan
What is closest to the truth
is the statement by Morris Abram, who was involved in drafting the Fourth
Geneva Convention, that stated that the convention was not designed to cover
situations like Israeli settlements.
His opinion is more relevant
than any agenda-orientated, narrow interpretation of international law which
ignores the fact that Israel does apply the humanitarian aspects of the
convention despite her interpretation of the convention and The Hague
Regulations that her control of the territory is not an "occupation",
is legal under international law and that Israelis have a right to buy land and
build communities.
debbie • 2 years ago
Steiman's mother is illegal
and his birth is in contrast with international law
I do not have an MA in Int'l
Law but I have read PhDers and professors who do. In any case, Steiman writes:
"Belligerent occupation is a specific category under the international
laws of war that comes into effect when a state captures territory from another
state during the course of war" and I ask - what state exactly did Israel Palestine Jordan Jordan Britain Geneva
He tries to get out by
claiming that Geneva Israel
Only a negotiated treaty can
solve this and if the Arabs make those negotiations difficult, that does not
preclude Jews from being engaged in "close settlement" on the land,
another right guaranteed by international law.
P.S. I read that Steiman has
interned at the New Israel Fund's Shatil and wrote for Muftah (for example,
this: "the One-State Solution is an entirely unworkable and disastrous
plan".) That would indicate a political motivation and extreme leftist
orientation that should have been acknowledged.
Guest Yisrael
Medad • a year ago
It is sometimes claimed that Jordan West Bank aka Judea and Samaria Israel Jordan West Bank ” and tried to reach a peace treaty after the Six-Day War which would
have returned, with modified borders, the West Bank to Jordan
•
When he moved to Israel Israel
•
"it must be understand that
the West Bank is under a legal regime of belligerent
occupation."
No.
Guest Squallgreg • a year ago
It is sometimes claimed that Jordan West Bank , was entitled at most to claim the status of belligerent occupant. In
its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the
matter of occupation applied to any armed conflict between High Contracting
Parties and that it was irrelevant whether territory occupied during that
conflict was under their sovereignty. The Israeli High Court of Justice itself
established that the application of the regulations depends on the effective
military control exercised from outside the nation’s borders, and not from
previous sovereignty over the territory of a specific state (HCJ 785/87).
Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an
occupation which was opposed by the local population at the time, most of all
by Fattah militants, to the point that King Hussein felt obliged to impose
martial law - does not justify the use of the expression “disputed territories”
in place of “occupied territories.” Even more so considering that Israel Jordan West
Bank ” and tried to reach a
peace treaty after the Six-Day War which would have returned, with modified
borders, the West Bank to Jordan
And Jordan Israel Israel
Into the Fray: The Iran
Is the EU Adopting a Double-Standards
Approach toward Israel Palestinian Territories
by Lorenzo Kamel
[Lorenzo Kamel, Ph.D.,
is a Research Fellow at Bologna University Harvard University
My previous
post analyzed the EU’s approach towards Northern Cyprus and Western Sahara . This post will focus
on the Palestinian Territories Israel
The Palestinian Territories
In other somewhat similar contexts, such as, just to name
a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East
Turkestan, the occupying powers of these areas have created in loco nominally
independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not
building settlements in their “occupied territories” (Chechnya is just an
example), and/or have incorporated the local inhabitants as their citizens:
with all the guarantees, rights and problems that this entails.
Some scholars have
stressed out that the Golan Heights and East Jerusalem have been (unofficially,
in the case of East Jerusalem) annexed by the State of Israel and that despite
this, the EU Guidelines (discussed
in the previous post) are to be enforced in these
territories as well. Therefore, according to them, the comparison with other
“occupations” would show that the Palestinian case cannot be considered “sui
generis” and that the EU approach on the issue is marred by incoherence. These
claims deserve a short preliminary clarification.
Contrary to several
other occupying powers, Israel East Jerusalem and the Golan, but
not the whole West Bank , the Israeli authorities fulfilled several
policy goals as well as ideological purposes. The West Bank is mainly perceived in demographic terms:
how much land can be taken by new and old settlers without giving the impression
that Israel
The “disputed territories”
logic
According to a
research paper recently published by
the Kohelet Policy Forum, the EU Guidelines “explicitly and erroneously refer
to the pre-1967 armistice lines as borders, and implicitly and incorrectly
insist not only that the EU does not recognize potential Israeli claims to
sovereignty in the disputed territories but that Israel is not entitled to
assert those claims. ”
The lack of clear-cut borders, however, cannot be
considered a valid objection. Neither Israel Palestine Palestine non-member State 29 November 2012 , could theoretically start building settlements
on Israeli soil.
It is sometimes claimed that
Jordan West Bank , was entitled at most
to claim the status of belligerent occupant. In its 2004’s Wall advisory
opinion, the ICJ ruled that the regulations on the matter of occupation applied
to any armed conflict between High Contracting Parties and that it was
irrelevant whether territory occupied during that conflict was under their
sovereignty. The Israeli High Court of Justice itself established that the
application of the regulations depends on the effective military control
exercised from outside the nation’s borders, and not from previous sovereignty
over the territory of a specific state (HCJ 785/87). Therefore, the fact that
the West Bank was occupied by Jordan until 1967 – an occupation which was
opposed by the local population at the time, most of all by Fatah militants, to
the point that King Hussein felt obliged to impose martial law – does not
justify the use of the expression “disputed territories” in place of “occupied
territories.” Even more so considering that Israel, in Allan Gerson’s words,
“never challenged the lawfulness of Jordan’s control of the West Bank” and
tried to reach a peace treaty after the Six-Day War which would have returned,
with modified borders, the West Bank to Jordan.
The “disputed
territories” logic is based on a selective use of international consensus. A
good example is provided by the Palestinian village of Umm Rashrash Negev and Golani Brigades on March 10, 1949 , eight months after the
United Nations Security Council’s resolution No. 54 called for a ceasefire,
forbidding any acquisition of territory from that date on.
It is only thanks to
an established international consensus – expressed by 160 countries – that
Eilat is today legitimately part of the State of Israel. The same international
consensus established the illegality of settlements as well as of the
occupation of the Palestinian territories. UNSC’s resolution n. 476
(1980) pointed out for
example that the “acquisition of territory by force is inadmissible” and
reaffirmed “the overriding necessity to end the prolonged occupation of Arab
territories occupied by Israel Jerusalem West Bank and East Jerusalem . The tendency to
overlook the selective use of international consensus, while reducing every
discussion to security, doesn’t fully take into account the complexity of the
issue.
This is even more the case when considering that Israel’s
admission to the United Nations was not unconditional, but bound to its
compliance with its assurances regarding the implementation of the UN’s Charter
and other resolutions (Israel’s original application for admission was, not by
chance, rejected by the UNSC).
Furthermore, before
the establishment of the UN, the right granted to the Jewish people to settle
in the mandated territories was neither exclusive nor unlimited, but explicitly
subordinated to the protection of the “rights and position of other sections of
the population”. Those very same rights are currently being violated by the
continuous funding allotted to new settlements and
through the exploitation of local natural resources, a policy specifically
prohibited by the Fourth Hague Convention of 1907.
About 94 percent of the materials produced
nowadays in the Israeli quarries in the West Bank is transported to Israel
(Mis)using Oslo
The Oslo Accords explicitly preserve the positions of the
parties without resolving the question of territorial sovereignty. That’s the
reason why the already mentioned research paper released by Kohelet pointed out
that “none of the agreements empower a third party like the EU to override the
negotiations and impose its own views of sovereignty over the disputed
territory”. However, to invoke the Oslo Agreements in order to undermine the EU
approach on the issue is problematic.
The Oslo
Furthermore, as recently noted by Vera
Gowlland-Debbas, not only is the legal status of the Oslo Agreements far from
clear in that, not having been registered with the UN, they cannot be invoked
before any organ of the United Nations, but also Article 103 of the UN Charter
ensures that in case of conflict, the obligations of Israel under the Charter
would prevail over any other agreement.
Finally, Article 31 of the Oslo Agreements clarified that
“neither side shall initiate or take any step that will change the status of
the West Bank and the Gaza Strip”. This statement is
subject to different possible interpretations. However, in each round of
negotiations the Israeli authorities require to the interested parties to take
into account the new local demography. This can hardly be considered as an
unintentional result of their policies in the area.
Conclusions
A few weeks ago
President Barack Obama praised Nelson
Mandela saying that he “freed not just the prisoner, but the jailer as well”.
We cannot rely on any Palestinian or Israeli Mandela. The only chance to
overcome the current stalemate is through the direct intervention of the
international community. The EU Guidelines barring loans to Israeli entities
established or operating in the Palestinian Territories, although very limited
in scope, represent one relevant step in that direction. The recent EU-Morocco
Agreement, beside being wrong from a political and moral point of view, risks
to undermine these efforts.
There are only two bad alternatives to the multilateral
approach underpinning the guidelines approach. The first one is the sadly
well-known “aggressive unilateralism” that Israelis and Palestinians showed in
so many occasions. The second is what the Austrian-born Jewish philosopher
Martin Buber termed “monologue disguised as dialogue”, i.e. the dialogue “in
which two or more men, meeting in space, speak each with himself in strangely
tortuous and circuitous ways and yet imagine they have escaped the torment of
being thrown back on their own resources”. Buber wrote these words in 1947. At
the beginning of 2014 they look truer than ever.
For the record,
the reason “[w]e cannot rely on any Palestinian or Israeli Mandela,” is because the premise that the anti-apartheid
liberation struggle in South Africa
In any case, I hope direct intervention of the international community refers not just to the various bodies within the community of nation-states but also to international civil society as well, in which case we see the relevance of the BDS movement. And such intervention will have to accord some measure of leverage to Palestinian negotiators (given the disparities in bargaining power) that they have historically lacked, at least in comparison to their South African counterparts (for the reasons detailed by Younis).
In any case, I hope direct intervention of the international community refers not just to the various bodies within the community of nation-states but also to international civil society as well, in which case we see the relevance of the BDS movement. And such intervention will have to accord some measure of leverage to Palestinian negotiators (given the disparities in bargaining power) that they have historically lacked, at least in comparison to their South African counterparts (for the reasons detailed by Younis).
Ori’s answers are here.
‘I am not sure which particularly UN organ the Author is referring to…’
‘UNSC’s resolution n. 476 (1980) pointed out for example that the “acquisition of territory by force is inadmissible” and reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied byIsrael Jerusalem
‘….and assuming arguendoJudea and
Samaria/West Bank is occupied, Israel
It is sometimes claimed thatJordan West Bank , was entitled at most to claim the status of belligerent occupant. In
its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the
matter of occupation applied to any armed conflict between High Contracting
Parties and that it was irrelevant whether territory occupied during that
conflict was under their sovereignty. The Israeli High Court of Justice itself
established that the application of the regulations depends on the effective
military control exercised from outside the nation’s borders, and not from
previous sovereignty over the territory of a specific state (HCJ 785/87).
Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an
occupation which was opposed by the local population at the time, most of all
by Fatah militants, to the point that King Hussein felt obliged to impose
martial law – does not justify the use of the expression “disputed
territories” in place of “occupied territories.” Even more so considering that Israel Jordan West Bank ” and tried to reach a peace treaty after the Six-Day War which would
have returned, with modified borders, the West Bank to Jordan
The “disputed territories” logic is based on a selective use of international consensus. A good example is provided by the Palestinianvillage of Umm Rashrash Negev
and Golani Brigades on March 10, 1949 , eight months after the United Nations
Security Council’s resolution No. 54 called for a ceasefire, forbidding any
acquisition of territory from that date on.
‘I am not sure which particularly UN organ the Author is referring to…’
‘UNSC’s resolution n. 476 (1980) pointed out for example that the “acquisition of territory by force is inadmissible” and reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by
‘….and assuming arguendo
It is sometimes claimed that
The “disputed territories” logic is based on a selective use of international consensus. A good example is provided by the Palestinian
1.10.2014
at 9:33 am ESTcarl meyer
at 9:33 am ESTcarl meyer
Re...“explicitly and
erroneously refer to the pre-1967 armistice lines as borders”
There’s nothing in international law that says agreed-upon armistice lines imposed by the Security Council as an Article 40 provisional measure are not a type of border, boundary, or frontier – pending a more permanent solution. See for example Tripartite Declaration Regarding the Armistice Borders : Statement by the Governments of the United States, The United Kingdom, and France, May 25, 1950
The UN has never questioned the right of Israel to exercise civil jurisdiction over the territory outside the UN partition frontiers, so long as it was inside the agreed upon boundaries laid down by the armistice agreements. The only tangible manifestation of sovereignty is the exercise of jurisdiction, andIsrael East Jerusalem and the West Bank under
Jordanian jurisdiction. The Security Council subsequently adopted Resolution 228
(1966) in which the Council observed that, “the grave Israeli Military action
which took place in the southern Hebron area [of the West Bank] on 13 November
1966… constituted a large scale and carefully planned military action ‘‘on the
territory of Jordan” by the armed forces of Israel”
The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations explains that:
There’s nothing in international law that says agreed-upon armistice lines imposed by the Security Council as an Article 40 provisional measure are not a type of border, boundary, or frontier – pending a more permanent solution. See for example Tripartite Declaration Regarding the Armistice Borders : Statement by the Governments of the United States, The United Kingdom, and France, May 25, 1950
The UN has never questioned the right of Israel to exercise civil jurisdiction over the territory outside the UN partition frontiers, so long as it was inside the agreed upon boundaries laid down by the armistice agreements. The only tangible manifestation of sovereignty is the exercise of jurisdiction, and
The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations explains that:
Every State likewise has the
duty to refrain from the threat or use of force to violate international lines
of demarcation, such as armistice lines, established by or pursuant to an
international agreement to which it is a party or which it is otherwise bound
to respect. . . .
. . . The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.
. . . The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.
During the Security Council’s 433rd meeting, Abba Eban stated that the armistice lines clearly defined the State’s jurisdiction and had the normal legal characteristics of frontiers:
The armistice lines do not
merely separate armed forces. They mark the clearly defined areas of full
civil jurisdiction. The Government, the courts, the legislatures, the security
authorities of each respective State operate smoothly and unchallenged up to
the appropriate armistice line. These lines thus have the normal
characteristics of provisional frontiers until such time as a new process
of negotiation and agreement determines the final territorial settlement.
…
The Armistice Agreements are not peace treaties. They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated.
…
The Armistice Agreements are not peace treaties. They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated.
— link to un.org
PendingPalestine Palestine Palestine Israel Israel 4 December 2012 .
Pending
19 Statement to the Security Council by Foreign
Minister Eban- 6
June 1967
VOLUMES 1-2:
1947-1974
XI. THE SIX-DAY WAR
19. Statement to the Security Council by Foreign
Minister Eban, 6
June 1967 :
Foreign Minister Eban left Jerusalem
Mr. Eban (Israel
I thank you, Mr. President,
for giving me this opportunity to address the Council. I have just come from Jerusalem Israel
Two days ago Israel Israel
An army, greater than any
force ever assembled in history in Sinai, had massed against Israel Egypt Nasser had provocatively brought five infantry divisions and
two armored divisions up to our very gates; 80,000 men and 900 tanks were
poised to move.
A special striking force,
comprising an armored division with at least 200 tanks, was concentrated
against Eilat at the Negev 's southern tip. Here was a clear design to cut the
southern Negev off from the main body of our State. For Egypt Israel Israel Egypt Israel Israel Suez Canal , despite the Security Council's decision of 1 September 1951 [Resolution 95 (1951)]. And now the creative
enterprise of ten patient years which had opened an international route across
the Strait of Tiran Gulf of Aqaba had been suddenly and arbitrarily choked. Israel
Iraqi troops reinforced
Jordanian units in areas immediately facing vital and vulnerable Israel Algeria Kuwait Yemen Israel Israel Jordan Valley
In short, there was peril for
Israel Israel
We were buoyed up by an
unforgettable surge of public sympathy across the world. The friendly
Governments expressed the rather ominous hope that Israel
Now there could be no doubt
about what was intended for us. With my very ears I heard President Nasser's
speech on 26 May. He said:
"We intend to open a
general assault against Israel Israel
On 2 June, the Egyptian
Commander in Sinai, General Mortagi, published his Order of the Day, calling on
his troops to wage a war of 'destruction against Israel
The policy, the arms, the men
had all been brought together, and the State thus threatened with collective
assault was itself the last sanctuary of a people which had seen six million of
its sons exterminated by a more powerful dictator two decades before and the
million Jews expelled from Arab lands.
The question then widely
asked in Israel Gulf of
Aqaba for ships of all
nations and of all flags.
As we pursued this avenue of
international solution, we wished the world to have no doubt about our
readiness to exhaust every prospect, however fragile, of a diplomatic solution
- and some of the prospects that were suggested were very fragile indeed.
But as time went on, there
was no doubt that our margin of general security was becoming smaller and
smaller. Thus, on the morning of 5 June, when Egyptian
forces engaged us by air and land, bombarding the villages of Kissufim,
Nahal-Oz and Ein Hashelosha we knew that our limit of safety had been reached,
and perhaps passed. In accordance with its inherent right of self-defense as formulated in Article
51 of the United Nations Charter, Israel
Even when engaged with
Egyptian forces, we still hoped to contain the conflict. Egypt
"We shall
not attack any country unless it opens war on us. Even now, when the mortars
speak, we have not given up our quest for peace. We strive to repel all menace
of terrorism and any danger of aggression to ensure our security and our
legitimate rights."
In accordance with this same
policy of attempting to contain the conflict, yesterday I invited General Bull, the Chief of Staff of the Truce Supervision
Organization, to inform the heads of the Jordanian State that Israel had no
desire to expand the conflict beyond the unfortunate dimensions that it had
already assumed and that if Israel were not attacked on the Jordan side, it
would not attack and would act only in self-defense. It reached my ears that
this message had been duly and faithfully conveyed and received. Nevertheless, Jordan Israel Jerusalem
To the appeal of
Prime Minister Eshkol to avoid any further extension of the conflict, Syria Megiddo Jordan Jerusalem
There has been bombing of
houses; there has been a hit on the great new National Museum of Art; there has
been a hit on the University and on Shaare Zedek, the first hospital ever to
have been established outside the ancient walls. Is this not an act of
vandalism that deserves the condemnation of all mankind? And in the Knesset
building, whose construction had been movingly celebrated by the entire
democratic world ten months ago, the Israel Cabinet and Parliament met under
heavy gunfire, whose echoes mingled at the end of our meeting with Hatikvah,
the anthem of hope.
Thus throughout the day and
night of 5 June, the Jordan which we had expressly invited to abstain from
needless slaughter became, to our surprise, and still remains, the most intense
of all the belligerents; and death and injury, as so often in history, stalk
Jerusalem's streets.
When the
approaching Egyptian aircraft appeared on our radar screens, soon to be
followed by artillery attacks on our villages near the Gaza Strip, I instructed Mr. Rafael to inform the Security
Council, in accordance with the provisions of Article 51 of the Charter. I know
that that involved arousing you, Mr. President, at a most uncongenial hour of
the night, but we felt that the Security Council should be most urgently
seized.
I should, however, be less
than frank if I were to conceal the fact that the Government and people of Israel Israel Israel Gulf of Aqaba , the Strait of Tiran
It is not, I think, a
question of sovereignty that is here involved. The United Nations has a right
to ask that, when it assumes a function, the termination of that function shall
not take place in conditions that would lead to anti-Charter situations. I do
not raise this point in order to linger upon that which is past, but because of
Israel
The United Nations Emergency
Force rendered distinguished service. Nothing became it less than the manner of
its departure. All gratitude and appreciation are owed to the individuals who
sustained its action. And if in the course of the recent combats United Nations
personnel have fallen dead or wounded - as they have - then I join my voice in
an expression of the most sincere regret.
The problem of the future
role of a United Nations presence in conflicts such as these is being much
debated. But we must ask ourselves a question that has arisen as a result of
this experience. People in our country and in many countries ask: What is the
use of a United Nations presence if it is in effect an umbrella which is taken
away as soon as it begins to rain? Surely, then, future arrangements for
peace-keeping must depend more on the agreement and the implementation of the
parties themselves than on machinery which is totally at the mercy of the host
country, so totally at its mercy as to be the instrument of its policies,
whatever those policies may be.
We have lived through three
dramatic weeks. Those weeks, I think, have brought into clear view the main
elements of tension and also the chief promise of relaxed tension in the
future. The first link in the chain was the series of sabotage acts emanating
from Syria Israel Middle
East .
But then there came a graver
source of tension in mid-May, when abnormal troop concentrations were observed
in the Sinai Peninsula . For the ten years of relative stability beginning
with March 1957 and ending with May 1967, the Sinai Desert
Experience in many parts of
the world, not least in our own, demonstrates that massive armies in close
proximity to each other, against a background of a doctrine of belligerency and
accompanying threats by one army to annihilate the other, constitute an
inflammatory situation.
We were puzzled in Israel
To these grave sources of
tension - the sabotage and terrorist movement, emanating mostly from Syria Strait of Tiran Gulf of Aqaba . It is
not difficult, I think, to understand why this incident had a more drastic
impact than any other. In 1957 the maritime nations, within the framework of
the United Nations General Assembly, correctly enunciated the doctrine of free
and innocent passage through the Strait.
Now, when that doctrine was
proclaimed - and incidentally, not challenged by the Egyptian representative at
that time - it was little more than an abstract principle for the maritime
world. For Israel Israel Africa ,
a network of relationships which is the chief pride of Israel
All this, then, had grown up
as an effective usage under the United Nations flag. Does Mr. Nasser really
think that he can come upon the scene in ten minutes and cancel the established
legal usage and interests of ten years?
There was in this wanton act
a quality of malice. For surely the closing of the Strait of Tiran Egypt Asia
and East Africa , that trade with the Port of Eilat Strait of Tiran Gulf of Aqaba . Other sovereign States from Japan Ethiopia Thailand Uganda Cambodia Madagascar Israel Cairo Israel Israel Asian States
Here then was a wanton
intervention in the sovereign rights of other States in the eastern half of the
world to decide for themselves whether or not they wish to establish trade
relations with either or both of the two ports at the head of the Gulf of
Aqaba.
When we examine, then, the
implications of this act, we have no cause to wonder that the international
shock was great. There was another reason too for that shock. Blockades have
traditionally been regarded, in the pre-Charter parlance, as acts of war. To
blockade, after all, is to attempt strangulation; and sovereign States are
entitled not to have their trade strangled. To understand how the State of
Israel felt, one has merely to look around this table and imagine, for example,
a foreign Power forcibly closing New York or Montreal, Boston or Marseille, Toulon
or Copenhagen, Rio or Tokyo or Bombay harbor. How would your Governments react?
What would you do? How long would you wait?
But Israel Israel Israel Mediterranean alone.
In law and in history, peace and blockades have never co-existed. How could it
be expected that the blockade of Eilat and a relaxation of tension in the Middle East could ever be brought into harmony?
These then were the three
main elements in the tension: the sabotage movement; the blockade of the port;
and, perhaps more imminent than anything else, this vast and purposeful
encirclement movement, against the background of an authorized presidential
statement announcing that the objective of the encirclement was to bring about
the destruction and the annihilation of a sovereign State.
These acts taken together -
the blockade, the dismissal of the United Nations Emergency Force, and the
heavy concentration in Sinai - effectively disrupted the status quo which had
ensured a relative stability on the Egyptian-Israel frontier for ten years. I
do not use the words "relative stability" lightly, for in fact while
those elements in the Egyptian-Israel relationship existed there was not one
single incident of violence between Egypt Israel Israel Middle East , of
peaceful co-existence. The question is whether there is any reason to believe
that such a new era may yet come to pass. If I am a little sanguine on this
point, it is because of a conviction that men and nations do behave wisely once
they have exhausted all other alternatives. Surely the other alternatives of
war and belligerency have now been exhausted. And what has anybody gained from
that? But in order that the new system of inter-State relationships may
flourish in the Middle East , it is important that certain principles be applied
above and beyond the cease-fire to which the Security Council has given its
unanimous support.
Let me then say here that Israel
I have said that the
situation to be constructed after the cease-fire must depend on certain
principles. The first of these principles surely must be the acceptance of Israel Israel
And if, as everybody knows to
be the fact, the universal conscience was in the last week or two most
violently shaken at the prospect of danger to Israel, it was not only because
there seemed to be a danger to a State, but also, I think, because the State
was Israel, with all that this ancient name evokes, teaches, symbolizes and
inspires. How grotesque would be an international community which found room
for 122 sovereign units and which did not acknowledge the sovereignty of that
people which had given nationhood its deepest significance and its most
enduring grace.
No wonder, then, that when
danger threatened we could hear a roar of indignation sweep across the world,
that men in progressive movements and members of the scientific and humanistic
cultures joined together in sounding an alarm bell about an issue that vitally
affected the human conscience. And no wonder, correspondingly, that a deep and
universal sense of satisfaction and relief has accompanied the news of Israel
But the central point remains
the need to secure an authentic intellectual recognition by our neighbours of Israel Israel Middle East .
This, then, is the first
axiom. A much more conscious and uninhibited acceptance of Israel's statehood
is an axiom requiring no demonstration, for there will never be a Middle East
without an independent and sovereign State of Israel in its midst.
The second principle must be
that of the peaceful settlement of disputes. The Resolution thus adopted falls
within the concept of the peaceful settlement of disputes. I have already said
that much could be done if the Governments of the area would embark much more
on direct contacts. They must find their way to each other. After all, when
there is conflict between them they come together face to face. Why should they
not come together face to face to solve the conflict? And perhaps on some
occasions it would not be a bad idea to have the solution before, and therefore
instead of, the conflict.
When the Council discusses
what is to happen after the cease-fire, we hear many formulas: back to 1956,
back to 1948 - I understand our neighbors would wish to turn the clock back to
1947. The fact is, however, that most clocks move forward and not backward, and
this, I think, should be the case with the clock of Middle Eastern peace - not
backward to belligerency, but forward to peace.
The point was well made this
evening by the representative of Argentina Middle East . In a similar sense, the representative of Canada
Another factor in the harmony
that we would like to see in the Middle
East relates to external
Powers. From these, and especially from the greatest amongst them, the small
States of the Middle East - and most of them are small -ask for a rigorous
support, not for individual States, but for specific principles; not to be for
one State against other States, but to be for peace against war, for free
commerce against belligerency, for the pacific settlement of disputes against
violent irredentist threats; in other words, to exercise an even-handed support
for the integrity and independence of States and for the rights of States under
the Charter of the United Nations and other sources of international law.
There are not two categories
of States. The United Arab
Republic , Iraq Syria Jordan Lebanon Israel
It is important that States
outside our region apply a balanced attitude, that they do not exploit
temporary tensions and divergencies in the issues of global conflict, that they
do not seek to win gains by inflaming fleeting passions, and that they strive
to make a balanced distribution of their friendship amongst the States of the Middle East . Now whether all the speeches of all the Great Powers this evening
meet this criterion, everybody, of course, can judge for himself. I do not
propose to answer in detail all the observations of the representative of the Soviet Union . I had the advantage of hearing the same things in
identical language a few days ago from his colleague, the Soviet Ambassador in Israel Israel State ,
Israel United
Arab Republic ? Does Israel Israel Egypt Egypt Syria Jordan Iraq Lebanon Kuwait Algeria Israel Israel Morocco Kuwait
I raise these points of
elementary logic. Of course, a Great Power can take refuge in its power from
the exigencies of logic. All of us in our youth presumably recounted La
Fontaine's fable, "La raison du plus fort est
I would say in conclusion
that these are, of course, still grave times. And yet they may perhaps have a
fortunate issue. This could be the case if those who for some reason decided so
violently, three weeks ago, to disrupt the status quo would ask themselves what
the results and benefits have been. As he looks around him at the arena of
battle, at the wreckage of planes and tanks, at the collapse of intoxicated
hopes, might not an Egyptian ruler ponder whether anything was achieved by that
disruption? What has it brought but strife, conflict with other powerful
interests, and the stem criticism of progressive men throughout the world?
I think that Israel
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