Part 2 of a previously published article entitled “Palestine: The Unending Conflict: Part 1”, dealing primarily with Israel’s “right to exist” under International Law and post-WW1 Treaties.

George Peters

It can be read independently of “Part 1”.

This article attempts to be more expansive, covering the major issues from 1948 onwards, issues used to libel and defame the State of Israel. It has been necessary to simplify somewhat, as the International Law pertaining to the Laws and Customs of War are extraordinarily complex.  The audience for this article is the passionate advocate of Israel, and not scholars of International Law, or indeed, scholars of anything, but advocates who want the facts, stripped of distortion, propaganda and fabrication.

OK, let’s start. People should really read and become familiar with  the oft-quoted International Resolutions, Treaties and Conventions, so often used by opponents of Israel, and in particular, of its “Illegal Occupation” and “Illegal Settlements”, opponents who fabricate International Law to enhance Israel’s status as an outlaw and pariah State.

1)   We begin with UN GA Partition Resolution 181, which was no more than a recommendation, and one unanimously rejected by the Arab League, and so has no legal standing whatsoever. Even if the Arabs had agreed to it, Statehood could only have been achieved by the parties agreeing amongst themselves. The UN (GA, SC and even the Trusteeship Council) simply has no power to create a state in its Charter. To do so would imply that it could also “un-create” a State, ludicrous on its face, not to mention a threat to the prevailing basis of world order.

So, let us immediately dispense once and for all with the myth that Israel was somehow “created” by the UN

Here is the UN GA Resolution 181:

http://www.yale.edu/lawweb/avalon/un/res181.htm

We note in passing that this UN Resolution was the second of six (6) offers (to date) of Palestinian Arab statehood, the first in 1937, the most recent in 2008. Some might want to ask our opponents why such a State has been rejected so many times, over so many generations of Arab Leadership. The answer might prove interesting. Since deeds speak louder than words, it appears that they do not want one, not one that is a subset of former British Mandatory Palestine. And indeed they say it themselves when they spruik “Palestine from the River to the Sea”.

2) The Jordanian-Israeli General Armistice Agreement, April 3, 1949.

Here is the link to the Armistice Agreement:

http://avalon.law.yale.edu/20th_century/arm03.asp

It is of paramount importance to understand that “East Jerusalem”, Judea and Samaria were “no man’s land”, so to speak, after the departure of the British in May1948, which marked the termination of the British Mandate.

They were certainly not Arab lands, but part of former British Mandatory Palestine, specifically assigned by the League Mandate for reconstitution of a Jewish National Homeland in Palestine. At this point (1948) the armed forces of Transjordan (and several other Arab armies) entered Palestine, and seized the lands after an illegal war of aggression, against the recently established Sovereign State of Israel, itself the fulfillment of all the various post WW1 Treaties, and of course the very rationale of the League of Nations Mandate for Palestine, being the reconstitution of a Jewish National Homeland in Palestine.

(Some of the International Legal background regarding the validity of a Jewish Homeland in Mandatory Palestine has been briefly covered in the preceding article ”Palestine: The Unending Conflict: Part 1”).

In April, 1950, the newly renamed Hashemite Kingdom of Jordan formally annexed the lands of “East Jerusalem”, Judea and Samaria, an act regarded as illegal by the International Community, including the Arab League. This act had no basis in International Law; it was only the de facto act of Transjordan as a conqueror. It was an act formally recognized by only the UK, (perhaps not surprisingly since they participated in Transjordan’s war of aggression under the command of the British led Arab Legion) and Pakistan, hardly “international recognition”, and so still legally belonging to no Sovereign State, let alone Jordan, and does not qualify under International Law as “Occupied Territory”, having no de jure standing.

Why is this concept of land belonging to a Sovereign State important?

Well, it is really the essence of the whole issue. at least insofar as “Real Estate” is concerned, (though not for a moment to I consider  that to be the underlying heart of the Conflict).

It is imperative to grasp this, as the lands under discussion must previously have been the sovereign territory of another state under prevailing International Law (see Hague Regulations, immediately below). We carefully distinguish these lands from Sinai and Golan, both of which had been under legitimate sovereign control of Egypt and Syria, respectively

The initial internationally accepted legal framework defining and regulating occupation is found in the Hague Regulations (Hague II), 1899, and re-iterated again in 1907, with special regard to Section III – ON MILITARY AUTHORITY OVER HOSTILE TERRITORY, Articles 42 and 43.

Here is the link to the Hague Regulations:

http://avalon.law.yale.edu/19th_century/hague02.asp

Article 42 states:

“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself”

Article 43 states:

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

This is an enormously complex and tortured issue relating to the meaning of “sovereignty” in International Law, specifically the Laws and Customs of War, but in the final analysis, the absence of any sovereign authority over the lands is clear.

The lands were never the sovereign territory of any State (unless one counts the long-defeated and dismembered Ottoman Empire), and certainly not of Jordan. If anything, the legitimate owners were the Jews, under the League Mandate.

Readers who wish to pursue this in much greater detail are referred to the following article

http://jcpa.org/text/Occupation-Sharon.pdf               JCPA, Avnoam Sharon, 2009

We also read in the Jordanian-Israeli General Armistice Agreement:

“2. It is also recognized that no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.

In other words, as has been stated repeatedly by so many, these were but temporary Armistice lines, openly acknowledged by all signatories.

We still await an “ultimate peaceful settlement”. Obviously, we are not there yet.

It is important to also note the relevance of geography here.

“East Jerusalem”, Judea and Samaria constitute no “natural boundary” between Israel and its neighbors, as say, the Rhine constitutes the southern border between France and Germany. This is a landlocked area, just another part of British Mandatory Palestine (actually, the heartland of the historic home of the Jewish People). If there is any “natural boundary”, it is the Jordan River.

And indeed this is the true natural boundary of the reconstituted Jewish National Homeland as defined by the Mandate for Palestine , even after the British sabotage of the severance of some 76% of Palestine East of the River to establish the Emirate of Transjordan for Emir Abdullah, at the same time excluding the area east of the Jordan River from Jewish settlement.

That guarantee effectively created Transjordan as an Arab country apart from Palestine.

Plainly put, a Palestine-Arab State was created, in Palestine, by the British, but not for the “Palestinians”. This is a problem hardly of the Jews’ making.

In fact this “problem” may well be the solution, the so-called “Jordan is Palestine” proposal.

In short, A Two State Solution in Palestine  had already been established in 1921.

So, let us immediately dispense once and for all with the myth that Israel is a quasi-colonial, imperialist conqueror of the “Occupied Territories”. The land was always designated as the Jewish National Homeland, and simply reclaimed by its true owners after yet another aggressive war by three (3) Arab States in 1967. We see nothing exceptional in that.

3)   Finally, The Fourth Geneva Convention (officially: Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949), with special regard to Section III, “Occupied Territories”.

Note that, as stated above, “East Jerusalem”, Judea and Samaria cannot be considered illegally “Occupied” by Israel in 1967 (another illegal war of aggression by several Arab States), as they were taken from already illegally annexed territories (see 2) above.

It is also critical to note that while the 1949 Geneva Convention was focused on populations after the ravages of WW2, it continued to adhere to earlier customary Law regarding Occupation. The understanding was the same as depicted above.

Here is the link to the Geneva Convention:

http://avalon.law.yale.edu/20th_century/geneva07.asp

We should carefully examine the much discussed paragraph, under Part III, Section III “Occupied Territories”, greatly beloved and frequently seized upon by NGOs, the EU and Israel’s numerous opponents in general, cited here:

Art. 49. (of the 4^th Convention): “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive”.

So, since the territories are not and were never illegally occupied by Israel per International Law and Treaty, as above, the Convention is, quite simply, inapplicable to the discussion.

Even if it were applicable, there have been no “mass forcible transfers, deportations” from “Occupied Territory” to Israel.

Or the reverse, for that matter:

The Article goes on to say:

Art, 49: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Insofar as Israel is not “The Occupying Power” under International Law, it is a reductio ad absurdum to argue there have been “deportation or transfers” of Israelis to the “into the territory it occupies”, the so-called “Illegal Settlements”.

Subsequent Jewish settlement was entirely of its own accord.

Let us be perfectly clear on this point. Based on the inapplicability of the attribution of the lands as “Occupied Territories” the 4^th Geneva Convention, is not pertinent to contemporary Israel, so, let us immediately dispense once and for all with the myth that Israel is in violation of the 4^th Geneva Convention.

It is also useful to examine the context in which this Convention was written in 1949, which was to deal with the legacy of mass expulsions, deportations and forced population transfers inflicted by the Nazis in WW2 The Director of International Law at the ICRC stated in 2009: “There can therefore be no doubt that the decision to draft the Geneva Conventions of 1949 was sealed by the tragedy of the Second World War and that the conventions were intended to fill the gaps in international humanitarian law exposed by the conflict.”

Briefly then, the so-called “Occupied Territories” are not “Occupied”, and if they belong to anyone, they belong to the Jewish National Homeland, as part of the League Mandate for Palestine still enshrined in Article 80 of the UN Charter.

Here is the link to the UN Charter:

http://avalon.law.yale.edu/20th_century/unchart.asp

Article 80 enshrines all existing obligations under the Mandate system, as follows:

Article 80

1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.

2. Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77.

To summarize this fundamental matter, the so-called “Occupied Territories” were simply the return to the reconstituted Jewish National Homeland of illegally annexed, and unrecognized lands, subsequent to an illegal war of aggression (1967). As noted above, we see nothing exceptional about this.

We may note in passing that waging aggressive war, or more precisely “Crimes against Peace” (the same thing) was Count #1 in the Nuremberg Trial of the Major War Criminals:

” …Charter of this Tribunal annexed thereto, hereby accuse as guilty, in the respects hereinafter set forth, of Crimes against Peace, War Crimes, and Crimes against Humanity”.

As an aside, the third count (Crimes against Humanity) – much publicized today as being novel in its time (and maybe illegal, since it was retroactive) – was an afterthought, and of little significance to the Tribunal at the time, contrary to popular belief.

“East Jerusalem”, Judea and Samaria are, and have always been, legally, historically and geographically, part of the reconstituted Jewish National Homeland, bravely reclaimed by the Jews after several Crimes against Peace committed against them by the various belligerent pan-Arab military invasions, specifically those of 1948/49 and 1967..