Long list of former government officials and academics, along with a couple of bloggers and a couple of radical 'rabbis,' has urged President Obama to support the 'Palestinian' resolution condemning Jewish construction in Judea, Samaria and 'east' Jerusalem (Hat Tip: Memeorandum).
The time has come for a clear signal from the United States to the parties and to the broader international community that the United States can and will approach the conflict with the objectivity, consistency and respect for international law required if it is to play a constructive role in the conflict's resolution.
While a UNSC resolution will not resolve the issue of settlements or prevent further Israeli construction activity in the Occupied Territory, it is an appropriate venue for addressing these issues and for putting all sides on notice that the continued flouting of international legality will not be treated with impunity. Nor would such a resolution be incompatible with or challenge the need for future negotiations to resolve all outstanding issues, and it would in no way deviate from our strong commitment to Israel's security.
If the proposed resolution is consistent with existing and established US policies, then deploying a veto would severely undermine US credibility and interests, placing us firmly outside of the international consensus, and further diminishing our ability to mediate this conflict.
If the U.S. believes that the text of the resolution is imperfect, there is always the opportunity to set forth additional U.S. views on settlements and related issues in an accompanying statement. The alternative to a Resolution - a consensus statement by the President of the UNSC - would have no stature under international law, hence this option should be avoided.
Among the non-government officials (there are a few) are Peter Beinart and Andrew Sullivan, and two extreme Leftist 'rabbis.' The former government officials include former ambassador to Syria (although he seems to have left that one out) Edward Walker, Thomas Pickering and William Harrop (all former ambassadors to Israel), Chas Freeman, and former Secretary of Defense Frank Carlucci. The letter includes no current or former 'peace processors' and no Walt or Mearsheimer.
The legal basis for the letter's claim that the 'settlements' are illegal is a 30-year old letter written by a former State Department legal adviser, which is based upon the writings of someone who believed that the 'settlements' are legal. They present that letter as unchallenged. That's a lie.
Those who maintain that the settlements are illegal rely on Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states:
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…are prohibited…
and in the sixth paragraph:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
They interpret this as applicable to Israel’s settlement of the West Bank and Gaza, understanding Israel to have become a "belligerent occupant" of this territory through entry by its armed forces. They also argue that settlement policy leads to the violation of Palestinian rights under international humanitarian law–specifically, their right to self-determination, equality, property, freedom of movement, an adequate standard of living, and freedom of movement.Those who maintain that settlements are legal interpret Article 49 (6) of the 1949 Fourth Geneva Convention as inapplicable to Israel’s settlements.
For example, the late Professor Julius Stone—considered one of the premier legal theorists —maintained that the effort to designate Israeli settlements as illegal was a "subversion. . . of basic international law principles."
Among the 27 books he authored was Israel and Palestine: An Assault on the Law of Nations which dealt with the legal aspects of the Arab-Israeli conflict. In it, Stone set forth the central principles of international law upon which Israel’s right to settle the West Bank is based and discussed the inapplicability of Article 49(6) of the Fourth Geneva Convention to the case of Israeli settlement.
Stone drew upon the writings of Professor Stephen Schwebel, former judge on the Hague’s International Court of Justice (1981-2000), who distinguished between territory acquired in an "aggressive conquest" (such as Japanese conquests during the 1930s and Nazi conquests during World War II) and territory taken in a war of self-defense (for example, Israel’s capture of the West Bank and the Gaza Strip in 1967 war). He also distinguished between the taking of territory that is legally held by another nation (such as the Japanese occupation of Chinese territory and the Nazi Germany occupation of France, Holland, Belgium and other European lands) as opposed to the taking of territory illegally held. The latter applies to the West Bank and Gaza, which were not considered the legal territories of any High Contracting Party when Israel won control of them. The West Bank and Gaza were never the territory of a High Contracting Party; the occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate which encouraged Jewish settlement of the land.
Regarding Israel’s acquisition of territories in the 1967 war, Schwebel wrote:
Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. ("What Weight to Conquest," American Journal of International Law, 64 (1970))
Proponents of the view that settlements are legal further argue that Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps and thus cannot be applied to Israel because Israelis were neither forcibly transferred, nor were they intended to (nor do they) displace Arab residents of the territories. Arabs continue to live in these territories and their population continues to grow.
Those who believe settlements are legal also maintain that it is not the existence of settlements that have an impact on Palestinians’ standard of living, right to self-determination, equality, property, and freedom of movement. Rather, the impact upon their freedom of movement and standard of living is directly a result of the threat they pose to their Israeli neighbors and their governance by the Palestinian Authority.
They also claim that 'nine administrations' have regarded the 'settlements' as 'illegal.' That's also not true. Only the Carter and Obama administrations made that claim.
There's lots more that can be said about this subject, but given my current time constraints that will have to suffice for now.
Labels: Geneva Convention, Julius Stone, settlements are legal, Stephen Schwebel
posted by Carl in Jerusalem @ 9:58 PM
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At 4:25 AM, Blogger Sparky the Wonder Dog said...
The argument re: para 6 would have to be that it holds for populations in place who are presumed to constitute a de facto claim to future sovereignty--that the populations are protected from occupier repopulation regardless as to the legality or lack of duly constituted sovereign authority--and then you'd have to buy into that population being held harmless for a war of defense or deny the relevance of defensive wars. The presumption seems to be that Arab parties can initiate howsoever many offensive wars they want and if desolation and destruction of their infidel foe doesn't work out they get a reset.
At 4:40 AM, Blogger NormanF said...
Israel should not just not sit there and take it. Israel should aggressively defend the right of Jews to settle and live in Yesha... even if you're going to lose, you might as well lose on principle.
What could go wrong indeed
Name: Carl in Jerusalem
Location: Jerusalem, Israel
Comment: Does this group support Arab destruction in the area?