Commentary Magazine


Topic: international law

Defining Settlements Down: the False “Appropriation” Hysteria

Israel’s declaration of certain open, uncultivated areas near the 1949 Armistice Line as “state land” has been widely mischaracterized as an “appropriation” of private Palestinian land, and a promotion of settlement activity. It is neither.

Read More

Israel’s declaration of certain open, uncultivated areas near the 1949 Armistice Line as “state land” has been widely mischaracterized as an “appropriation” of private Palestinian land, and a promotion of settlement activity. It is neither.

A determination that land is “state land” is a factual, administrative finding that does not change the ownership of land. In the West Bank–like in the American West–massive amounts of land have no private owners. There is nothing unusual about this; indeed, it is even truer inside the Green Line. Moreover, if Israel is indeed an occupying power, it has a duty to administer and maintain the rule of law, and oversee public resources, both of which require the authorities to know what land has private owners and what does not.

An “appropriation” involves taking something that is someone’s. A designation of land as “state land” requires a determination, based on extensive investigation, that it does not have a private owner. The determination can be challenged administratively and judicially, as Palestinian claimants often do, and sometimes prevail.

In other words, nothing has been taken from anyone, or given to anyone. Thus a “state land” determination does not create any new facts or change ownership.

Moreover, designating an area state land does not mean that a Jewish community can be built on it. Both illegal Jewish and Arab building on state land is often demolished. Authorizing a new residential community would require a vast number of additional administrative and political permissions, none of which appear to be remotely forthcoming. Indeed, those who object to Israel’s recent action also object Jews living or even studying on undisputedly private Jewish-owned land in the West Bank.

The hysteria over this announcement illustrates several points. First, it reflects how detached discussions of “illegal settlements” are from international law. The entire legal argument against settlements rests on one sentence of the Fourth Geneva Convention, which prohibits an “occupying power” to “deport or transfer parts of its own civilian population” into the territory it occupies.

Assume the treaty even applies to this situation–and there is good reason to think it does not. Further assume that Israelis moving across the Green Line can be considered a “deportation or transfer” committed by the Israeli government, though it does not appear the government is moving anyone. None of that has anything to do with the occupying power determining the ownership status of the land, an action which does not transfer or help transfer, and indeed, has nothing to do with the movement of people.

On the other hand, Israel also announced this week the construction of thousands of housing units in eastern Jerusalem for Arab Israelis. If the Geneva Convention indeed forbids building apartments in occupied territory for one’s nationals, it does so without any ethnic discrimination. The question would not be whether the “settlers” are Jews or Arabs, but whether they are part of Israel’s “civilian population.” Yet on this action, the international community was entirely silent.

The outrage over Israel’s “settlement” actions has no basis in law. Moving people is settlement activity, but only when done by Jews. Not moving people is also settlement activity. “Settlement activity” has just become a term of opprobrium with legal pretensions.

Second, the outrage over Israel’s “state land” declaration must be seen on the background of the six-month moratorium on new settlement construction that the Netanyahu government has been quietly implementing. Indeed, even a plan to allow for some building in blocs in response to the murder of the boys was scrapped.

Bibi has quietly done exactly what all his critics in the peace camp have long demanded. But instead of bringing Abbas to the table, it has sent him on unilateral attacks at the UN and ICC.

So instead of giving Netanyahu credit for his silent freeze–credit which would raise serious questions about Abbas’s sincerity–Peace Now and the international community simply define settlements down.

In short, Netanyahu’s moratorium has only encouraged more extreme international attacks on any Jewish presence in the territories.

Read Less

International Law Is Broken

The redundancy, not to mention the hypocrisy, of the international law regime is hardly any great secret. Just how broken the system has now become was evidenced in recent weeks by two particularly striking rulings. On Thursday Russia and China vetoed the fourth attempt at a United Nations Security Council resolution on Syria’s referral to the International Criminal Court in the Hague. Given Syria’s use of chemical weapons against its own population, and the fact that the death toll in that country now stands at an estimated 162,000, it is unfathomable that a referral to the ICC hasn’t already been accomplished. Yet Syria is not a signatory of the Rome Statute and as such can only be referred to the ICC via the Security Council.  

Britain, however, is signed up to the ICC. And, in a striking juxtaposition to the Syrian case, Britain now finds itself under investigation by the ICC for war crimes that the British army is accused of having committed in Iraq between 2003 and 2008. This recent announcement puts the United Kingdom in the company of such rogue states as Libya, Colombia, and Afghanistan. The ICC’s chief prosecutor Fatou Bensouda made the decision after a complaint lodged in January by the Berlin-based NGO the European Center for Constitutional and Human Rights. If Bensouda is not satisfied that Britain is sufficiently investigating the conduct of its own armed forces, then the ICC will move to carry out an investigation against the UK.

Read More

The redundancy, not to mention the hypocrisy, of the international law regime is hardly any great secret. Just how broken the system has now become was evidenced in recent weeks by two particularly striking rulings. On Thursday Russia and China vetoed the fourth attempt at a United Nations Security Council resolution on Syria’s referral to the International Criminal Court in the Hague. Given Syria’s use of chemical weapons against its own population, and the fact that the death toll in that country now stands at an estimated 162,000, it is unfathomable that a referral to the ICC hasn’t already been accomplished. Yet Syria is not a signatory of the Rome Statute and as such can only be referred to the ICC via the Security Council.  

Britain, however, is signed up to the ICC. And, in a striking juxtaposition to the Syrian case, Britain now finds itself under investigation by the ICC for war crimes that the British army is accused of having committed in Iraq between 2003 and 2008. This recent announcement puts the United Kingdom in the company of such rogue states as Libya, Colombia, and Afghanistan. The ICC’s chief prosecutor Fatou Bensouda made the decision after a complaint lodged in January by the Berlin-based NGO the European Center for Constitutional and Human Rights. If Bensouda is not satisfied that Britain is sufficiently investigating the conduct of its own armed forces, then the ICC will move to carry out an investigation against the UK.

Writing for Gatestone last week, Colonel Richard Kemp noted that in previous years Britain has been silent in the face of the double standards and lawfare being waged against Israel at the UN. Kemp reminds us how, unlike America and five other European countries who voted against the Human Rights Council’s decision to endorse the Goldstone Report against Israel, Britain remained silent and simply abstained from voting at all on this matter. To this Kemp invokes the renowned words of German Pastor Martin Niemoeller: “Then they came for the Jews, and I did not speak out—
because I was not a Jew. Then they came for me— and there was no one left to speak for me.” Britain remained silent when the utterly duplicitous forces of international law came for the Jewish state, and now Britain finds itself next in line.

Some might be tempted to gloat at this turn of events–at the fact that, unlike Israel and America, the British blindly signed themselves over to the Rome Statute, and that the tables have been turned against the British who failed in their fundamental moral obligations to stand up for Israel against the tyrannies that populate the UN. Yet anyone who cares about the West and about the world’s democracies can’t find anything to be pleased about here. The actions of China and Russia at the Security Council are a stark reminder of the folly that sits at the heart of international law. That is the notion that countries—including those who have no respect for the rule of law within their own borders—will police one another fairly, and not exploit the international law system to advance their own national interests and those of their allies.

The gap between the Utopian delusions of those who constructed the international law regime and the sorry reality of international law in practice could not have been better demonstrated than by the events of the last two weeks. A genocidal regime in Syria now finds itself rendered virtually immune from prosecution while Britain, a country that not only upholds human rights but acted in Iraq to overthrow a human-rights abusing regime, is now being hauled before the scrutinizing eyes of the ICC.        

Read Less

“Apartheid”? Blame the Geneva Convention

John Kerry’s infamous apartheid comment continues to make waves in Israel, eliciting pushback from some surprising places–like yesterday’s Haaretz column by Zvi Bar’el. Bar’el, whom nobody could accuse of being an Israel apologist (his column asserts Israeli control over the West Bank is even worse than the apartheid), points out that under apartheid, the legal regime discriminates between citizens of the same country. That’s fundamentally different from an occupation, under which the legal regime discriminates between the occupying power’s citizens and the occupied noncitizens. All occupying powers have given their own citizens more rights than the occupied noncitizens, from the British in India through the French in Algeria to the Americans in Iraq, he noted; yet none of these were ever labeled apartheid. Why should Israel be any different?

But Bar’el neglects to mention one important point: The legal distinction all occupations make between citizens and noncitizens isn’t just a whim of “racist” occupiers; it’s mandated by the Fourth Geneva Convention.

This convention largely bars occupiers from applying their own laws to the occupied population, requiring them instead to maintain the preexisting legal system except where alterations are necessary to ensure the occupier’s security. For instance, Article 64 states “The penal laws of the occupied territory shall remain in force”; Article 51 requires the occupier to uphold the “legislation in force in the occupied country concerning working conditions”; and so forth. One of the most discriminatory practices of all is explicitly mandated by Article 66, which states that if the occupier promulgates laws for its own security in the occupied territory, violators from among the occupied population shall be tried in “properly constituted, non-political military courts.”

Israel has never officially deemed the West Bank occupied territory; it considers it disputed territory to which Israel has a valid claim. But under pressure from the rest of the world, which insists the West Bank is occupied territory, Israel long ago agreed to voluntarily uphold most of the Geneva Convention’s provisions. The ironic result is that in many cases, West Bank Palestinians have fewer rights than Israelis.

Read More

John Kerry’s infamous apartheid comment continues to make waves in Israel, eliciting pushback from some surprising places–like yesterday’s Haaretz column by Zvi Bar’el. Bar’el, whom nobody could accuse of being an Israel apologist (his column asserts Israeli control over the West Bank is even worse than the apartheid), points out that under apartheid, the legal regime discriminates between citizens of the same country. That’s fundamentally different from an occupation, under which the legal regime discriminates between the occupying power’s citizens and the occupied noncitizens. All occupying powers have given their own citizens more rights than the occupied noncitizens, from the British in India through the French in Algeria to the Americans in Iraq, he noted; yet none of these were ever labeled apartheid. Why should Israel be any different?

But Bar’el neglects to mention one important point: The legal distinction all occupations make between citizens and noncitizens isn’t just a whim of “racist” occupiers; it’s mandated by the Fourth Geneva Convention.

This convention largely bars occupiers from applying their own laws to the occupied population, requiring them instead to maintain the preexisting legal system except where alterations are necessary to ensure the occupier’s security. For instance, Article 64 states “The penal laws of the occupied territory shall remain in force”; Article 51 requires the occupier to uphold the “legislation in force in the occupied country concerning working conditions”; and so forth. One of the most discriminatory practices of all is explicitly mandated by Article 66, which states that if the occupier promulgates laws for its own security in the occupied territory, violators from among the occupied population shall be tried in “properly constituted, non-political military courts.”

Israel has never officially deemed the West Bank occupied territory; it considers it disputed territory to which Israel has a valid claim. But under pressure from the rest of the world, which insists the West Bank is occupied territory, Israel long ago agreed to voluntarily uphold most of the Geneva Convention’s provisions. The ironic result is that in many cases, West Bank Palestinians have fewer rights than Israelis.

For instance, Israeli labor law provides more protections than the patchwork of Jordanian and Ottoman law in place when Israel captured the West Bank in 1967. But the world views any application of Israeli law to “occupied territory” as a sign of annexation (see, for instance, the international outcry when Israel applied Israeli law to the Golan Heights in 1981). Thus for fear of sparking international protests, Israel has refrained from applying its own labor laws to the West Bank.

Similarly, human-rights organizations repeatedly slam trials in military courts as inherently inferior to those in civilian courts, and not without reason: Most democratic countries, Israel included, have laws requiring civilians to be tried in civil rather than military courts. That’s why Israeli civilians who commit crimes in the West Bank are tried in Israel’s civil courts rather than military ones–just as American civilians who committed crimes in Iraq were tried in American civil courts rather than military ones. But the Geneva Convention requires Palestinian civilians to be tried in military courts instead.

In short, it’s precisely all those people who insist the West Bank is “occupied territory” who have no grounds to complain about the discriminatory legal system in place there–because occupied territories are supposed to be governed by the Geneva Convention, which mandates this discriminatory regime. That such people are now accusing Israel of “apartheid” for having bowed to their demand to apply the convention is hypocrisy on a truly epic scale.

Read Less

The UNHRC’s Omissions and Assumptions

Evelyn Gordon rightly highlights the unique treatment Israel receives at the United Nation’s Human Rights Council (UNHRC), and she is right that Western governments should “insist that the council’s systemic denial of Israel’s rights come to an end.”

For those who want to see just how skewed the UNHRC’s report is, this AIJAC analysis of the report should be a must read. The whole thing is worth a read, both as a Cliff’s Notes to the report itself, and a rebuttal to some of the more egregious statements and omissions.

Just a few highlights:

Read More

Evelyn Gordon rightly highlights the unique treatment Israel receives at the United Nation’s Human Rights Council (UNHRC), and she is right that Western governments should “insist that the council’s systemic denial of Israel’s rights come to an end.”

For those who want to see just how skewed the UNHRC’s report is, this AIJAC analysis of the report should be a must read. The whole thing is worth a read, both as a Cliff’s Notes to the report itself, and a rebuttal to some of the more egregious statements and omissions.

Just a few highlights:

4. Significant omissions

4.1. Security measures

The Report discusses at length the impact of various measures, such as movement restrictions and the construction of the security barrier in the West Bank. These measures are in place to prevent terrorist attacks against Israelis - a fact that the Report utterly failed to note. In fact, that Israel has been subject to attacks by Palestinians is not mentioned once in the entire document.

4.2. West Bank legal system

A substantial amount of the alleged human rights abuses in the Report are due to the application of the Jordanian legal system in the West Bank, largely as it existed when Israel took control in 1967. The Report does not at any stage explain why Israel is implementing that system - which is in fact required under the laws of belligerent occupation.

Were Israel to cease implementing that system, it would be in breach of its obligations under international humanitarian law. Furthermore, whenever the possibility of Israel substantially amending that system is raised, Israel is condemned for attempting to annex the West Bank by imposing its own legal system. If continuing to apply the Jordanian legal system is against international law, Israel is caught in a Hellerian Catch-22.

5. Direct inconsistencies

5.1. Location of settlements

In some instances, the Report directly contradicts its own findings. For example, at one stage, the Report states that:

‘Settlements are generally located amongst the more vulnerable sections of Palestinian society, predominantly agrarian villages’ (at [18]).

Then in the next paragraph, the Report notes that:

The Mission heard that settlers can broadly be divided into three categories. Those who have moved on quality of life grounds and live in settlements close to Jerusalem and Tel Aviv…

 

8. Incorrect or unverified research

8.1. Water resources

The Report alleges that:

The settlements, including the associated restrictions, impede Palestinian access to and control over their natural resources. The Secretary General has noted that “Palestinians have virtually no control over the water resources in the West Bank” (at [36])…

The reference given for this is a 2012 report by the Secretary-General of the UN, which in turn referred to a 2004 report by the Economic and Social Council…

So in a seven year game of “Chinese Whispers” at the UN, Israel planning to build a barrier in a route incorporating most of an aquifer system that provides 51% of the West Bank’s water became the Palestinians having ‘virtually no control over the water resources in the West Bank’. 

Additionally, the route of the barrier as it currently stands has been substantially altered since the 2004 plan, but the Mission apparently did not think that it was worth checking if the actual route incorporated the same land.

8.3. Israel’s establishment

The Report claims that:

The “Declaration of the Establishment of the State of Israel” is issued. It equates Eretz-Israel (in Hebrew “the Land of Israel”) to the territory of British Mandate Palestine, in contrast to the provisions of 1947 United Nations General Assembly Resolution 181 on the partition of the British Mandate of Palestine into two Independent Arab and Jewish States (at p23).

This allegation is unfounded and entirely incorrect. In fact, the Declaration specifically provides that:

THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947.

The whole thing is not only worth reading, but should also be in any policymakers’ reference file. Kudos to AIJAC.

Read Less

Settlements’ Legality Won’t Prevent Peace

The release of a report on the legality of Israel’s presence in the West Bank commissioned by Prime Minister Netanyahu is being widely dismissed by critics of his government as well as those of the Jewish state. Though its findings that Jews have the right to live in the territories and that Israel’s presence there does not fit the traditional definition of a military occupation are solidly based in international law, no one should expect the left to respect the report issued by a panel headed by former Supreme Court Vice President Edmond Levy. Nor should we be surprised if the international community ignores it. Opposition to the settlements is so deeply entrenched that there is no argument, no matter how grounded in logic or justice, that would persuade those committed to the myth settlements are the only obstacle to peace, that they are not illegal. As legal scholar David M. Phillips wrote in the September 2009 issue of COMMENTARY, international law supports this position.

But while we expect this effort to be trashed, those horrified by the fact that Israel is willing to assert that it has rights in the West Bank that are as worthy of respect as those of the Arabs are not just wrong about the legal arguments. Their assumption that a belief in the settlements’ legality makes a peace deal impossible is equally mistaken. Just because Israel has rights in the West Bank doesn’t mean it need necessarily exercise them on every inch of the territory. The assertion of Jewish rights merely means Israel has a leg to stand on when negotiating the permanent status of the West Bank and Jerusalem. Far from that rendering peace unlikely, it ought to give Palestinians an incentive to come to the table and work out a deal that will give them as much of the territory as they can get. The obstacle to peace is the Palestinian belief that the Jewish presence throughout the country — including pre-1967 Israel — is illegitimate.

Read More

The release of a report on the legality of Israel’s presence in the West Bank commissioned by Prime Minister Netanyahu is being widely dismissed by critics of his government as well as those of the Jewish state. Though its findings that Jews have the right to live in the territories and that Israel’s presence there does not fit the traditional definition of a military occupation are solidly based in international law, no one should expect the left to respect the report issued by a panel headed by former Supreme Court Vice President Edmond Levy. Nor should we be surprised if the international community ignores it. Opposition to the settlements is so deeply entrenched that there is no argument, no matter how grounded in logic or justice, that would persuade those committed to the myth settlements are the only obstacle to peace, that they are not illegal. As legal scholar David M. Phillips wrote in the September 2009 issue of COMMENTARY, international law supports this position.

But while we expect this effort to be trashed, those horrified by the fact that Israel is willing to assert that it has rights in the West Bank that are as worthy of respect as those of the Arabs are not just wrong about the legal arguments. Their assumption that a belief in the settlements’ legality makes a peace deal impossible is equally mistaken. Just because Israel has rights in the West Bank doesn’t mean it need necessarily exercise them on every inch of the territory. The assertion of Jewish rights merely means Israel has a leg to stand on when negotiating the permanent status of the West Bank and Jerusalem. Far from that rendering peace unlikely, it ought to give Palestinians an incentive to come to the table and work out a deal that will give them as much of the territory as they can get. The obstacle to peace is the Palestinian belief that the Jewish presence throughout the country — including pre-1967 Israel — is illegitimate.

As Phillips and the new report pointed out, the international conventions prohibiting the movement of people into occupied territory has no application in the West Bank, as it forms part of the League of Nations Palestinian Mandate that was established to facilitate the creation of a national home for the Jews. Far from the West Bank being “stolen” from the Palestinians, it was simply unallocated territory from the former Ottoman Empire where Jews had legal rights as powerful as those of the Arabs. Nor do the postwar resolutions formed in response to Nazi policies in Eastern Europe that are frequently cited by settlement foes apply to Israel’s very different policies.

The widespread interpretation of this report is that it will allow Netanyahu to avoid demolishing those settlement outposts that were not previously authorized by the government. But any outpost that was built on land owned by Arabs can still be uprooted by legal action, as was the case with the Ulpana neighborhood of Beit El.

The fallacy here is not just that the effort to delegitimize the Jewish presence in the West Bank and Jerusalem is not a correct interpretation of international law. It is just as important to note that once Israel’s rights are confirmed, it doesn’t obligate Netanyahu or any of his successors to hold onto all of the land. The report’s recommendations that limits on growth in existing settlements should be lifted likewise doesn’t mean that a peace deal can’t be reached. Most of the settlements would be retained even in proposals put forward by the Jewish left, and those left out could still be evacuated, as the withdrawal from Gaza proved.

What it does do is force the Palestinians to understand that if they want peace, they must compromise.

But that is something they won’t do on the West Bank for the same reason they are unwilling to recognize Israel’s legitimacy as a Jewish state no matter where its borders are drawn. It is that reluctance to give up their opposition to Jewish sovereignty even inside the Green Line that prevents peace. Were the PA willing to make a peace deal that would end the conflict for all time, they could have the independent state they were offered and refused in 2000, 2001 and 2008. The settlement’s legality wouldn’t stop Israel from evacuating any place conceded in a peace deal. But so long as the Palestinians are encouraged to believe they can uproot all of the Jews, including those living in the Jewish settlement built on the outskirts of Jaffa a century ago that is now known as Tel Aviv, it won’t matter what the legal scholars say about any of this.

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.