Sunday, January 3, 2010

Are West Bank Settlements Illegal? According to Rightwing Zionist Lawyers, No; According to Every Other Legal Expert In the World, Yes

In his dissenting opinion to the 2004 decision of the International Criminal Court against Israel's "Separation Wall" Judge Thomas Buergenthal wrote:

Paragraph 6 of Article 49 of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies. It provides that "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies". I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6. It follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law. Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, I seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence. (The opinion can be read on Mitchell Bard's website, the Jewish Virtual Library, here.)

Buergenthal, a Holocaust survivor, a distinguished human rights judge, and a hero in Israel for his dissenting opinion in this case, did not even bother to argue that Israeli settlements are illegal. By 2004, no serious legal expert thought otherwise.

Perhaps it is fitting that one year after the Gaza fiasco, the Israeli Hasbara crowd – those on the right wing of it, anyway – are resurrecting some very old chestnuts, like: the West Bank is not Occupied Territory, or that if it is, the Fourth Geneva Convention does not apply to it, or that if it does, Israel is not violating it through settlements, blah, blah, blah.

These are pre-Intifada positions that date from the seventies and the eighties, and even then were advanced only by Israeli apologists, albeit some people who had distinguished themselves in other spheres, like Eugene Rostow and Julius Stone. In Israel, some of them may still be the official position, but no thinking person takes them seriously, certainly not in public discourse. The Israeli High Court, heck, even Ariel Sharon and Ehud Olmert, considered the Palestinian population of the West Bank be under occupation. George W. Bush called upon Israel to end the occupation. Until Vladimir Avigdor Lieberman took over the Foreign Ministry, that particular chestnut weren't even roasting on an open fire.

No further evidence of the death of these positions is needed than the venue of their "resurrection" (the Wall Street Journal and Commentary) and the right-wingers who are making them (deputy foreign minister of Israel, Danny Ayalon, and Northeastern law professor, David M. Philllips) Danny Ayalon, a member of the ultra-rightwing party Yisrael Beiteinu, claims that the territories are not occupied but rather disputed, using arguments that I have not heard in thirty years – in fact, since Gene Rostow and Julius Stone made them. In fact, I have no idea what is the Hebrew phrase for the "disputed territories" – whoever refers to "territories" (as opposed to Judea and Samaria) uses the adjective kevushim "conquered". And since Israel controls these territories as a result of military conquest and against the will of the inhabitants, they sure are conquered.

Matt Duss does a good job of disemboweling Ayalon here. My favorite part is in his reference (thanks to Gershom Gorenberg's "The Accidental Empire") to the memo prepared by the legal counsel of the Israeli Foreign Ministry, Theodor Meron in 1967

As recounted by Israeli journalist and historian Gershom Gorenberg — whose history of the settlements is well worth reading — "the legal counsel of the Foreign Ministry, Theodor Meron, was asked whether international law allowed settlement in the newly conquered land."

In a memo marked "Top Secret," Mr. Meron wrote unequivocally, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."

In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention — to which Israel was a signatory — forbade an occupying power from moving part of its population to occupied territory. [...]

Mr. Meron took note of Israel's diplomatic argument that the West Bank was not "normal" occupied territory, because the land's status was uncertain. The prewar border with Jordan had been a mere armistice line, and Jordan had annexed the West Bank unilaterally.

But he rejected that argument for two reasons. The first was diplomatic: the international community would not accept it and would regard settlement as showing "intent to annex the West Bank to Israel." The second was legal, he wrote: "In truth, certain Israeli actions are inconsistent with the claim that the West Bank is not occupied territory." For instance, he noted, a military decree issued on the third day of the war in June said that military courts must apply the Geneva Conventions in the West Bank.

Unfortunately, the Israeli government ignored Meron's legal advice, and developed a series of shifting legal rationales to justify the annexation and colonization of the occupied land, which has helped to create the exceedingly difficult and volatile situation we have today

As for David M. Phillips's piece, it is essentially preaching old (and one or two bizarre new) arguments to the choir, but in the sort of disingenuous manner expected from the ideological biased. For example, consider this seemingly innocuous paragraph:

To [Eugene] Rostow, "Jews have a right to settle in it under the Mandate," a right he declared to be "unchallengeable as a matter of law." In accord with these views, Israel has historically characterized the West Bank as "disputed territory" (although some senior government officials have more recently begun to use the term "occupied territory").

One would hardly know from this description that a) Eugene Rostow, a life-long Zionist and defender of Israel, himself referred to the territories as "under occupation" or b) that "some senior government officials" included the two former prime ministers of Israel, Ariel Sharon and Ehud Olmert. True, they did not institute an official change of policy, but nobody to the left of Dore Gold's rightwing think tank, the Jerusalem Center of Public Affairs, bothers with arguing that the territories are not occupied.

Phillips writes like somebody who only recently converted to the hasbara squad and, with the zeal of the convert, revives the dead horse. And poor Julius Stone, introduced disingenuously by Phillips merely as "an international law scholar"! Stone was another example of a brilliant and influential Jewish legal thinker who used his considerable acumen (and passion) in defense of the tribe. (See Andrew Dahl's overly generous deconstruction of Stone's biases here.) At least Stone came up with those positions decades ago, when the Stock Zionist Narrative was dominant, before the work of the New Historians and the outbreak of two Intifadas. At that time, somebody could get away with the quaint view that the West Bank was captured in a defensive war, that the Palestinians did not have a right as a people to self-determination, that three "No's of Khartoum" derailed Israel's genuine desire for peace (on this see Avi Shlaim's The Iron Wall), and most of all, that the Occupation was intended as a temporary measure until a credible partner would emerge.

Phillips argues (against everybody else in the world, except Stone, from whom he takes the argument), that the Fourth Geneva Convention forbids only forcible transfers of one's population to occupied territory (surprise, the West Bank is now suddenly occupied!) So the settler's "voluntary movement" is not prohibited. And this Phillips infers not only from the formal language but from the intent of the pertinent clause, which was to ensure that citizens would not be forcibly deported from their land, as the Jews were during the Holocaust. Phillips citation of Stone is revealing:

We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that...the West Bank...must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context exclude so tyrannical a reading of Article 49(6).

After reading this passage, a reasonable person would simply dismiss anything Stone has to say in defense of Israel's (then) legal position as blinded by his, quite admirable, Jewish loyalties. But more importantly, most intelligent Israelis also dismiss it. The issue is not merely Jewish settlement; it is Jewish settlement that serves as the basis for future claims of sovereignty, that thwarts the possibility of the self-determination of the Palestinians, takes away their resources, and confines them to Bantustans. For God's sake – who but the settlers use the language of Judenrein anymore? And if one wants to talk about historical associations, what about the historical associations of the Palestinian refugees with Palestine, where whole sections are now Araberrein?

Phillips writes:

The settlements are also a far cry from policies implemented by the Soviet Union in the late 1940s and early 1950s to alter the ethnic makeup of the Baltic states by initially deporting hundreds of thousands of people and encouraging Russian immigration.

Nor can they be compared to the efforts by China to alter the ethnic makeup of Tibet by forcibly scattering its native population and moving Chinese into Tibetan territory. Israel's settlement policies are also not comparable to the campaign by Morocco to alter the ethnic makeup of the Western Sahara by transferring Moroccan Arabs to displace the native Saharans, who now huddle in refugee camps in Algeria, or to the variety of population displacements that occurred in the various parts of the former Yugoslavia.

Note that he does not say why these comparisons are invalid – on the contrary, they are quite valid, certainly in the eyes of the settlers, who view the goal of the settlements inter alia to thwart Palestinian self-determination and openly say that Arabs should be expelled from Eretz Yisrael. In fact, the settlers view themselves as the vanguard of a large movement of Israelis that would simply make a Palestinian state impossible. And while successive Israeli governments have not been as ideologically motivated as the hard-core settlers, or have shown more or less ambivalence, they have never put the settlers on the leash – on the contrary, they have encouraged them to settle in areas which Israel coveted. And they have used the resources of the Occupied Territories as cheap land for the expansion of their population. Still, the comparisons are not entirely valid; China, for example, made the Tibetans citizens of China, whereas the Israelis simply want to control the natural resources of the Palestinians, and herd them into enclaves. (A more valid comparison with China would be the actions of the Zionists in 1948).

And here is another example of Phillips's disingenuousness:

After the Elon Moreh case, all Israeli settlements legally authorized by the Israeli Military Administration (a category that, by definition, excludes "illegal outposts" constructed without prior authorization or subsequent acceptance) have been constructed either on lands that Israel characterizes as state-owned or "public" or, in a small minority of cases, on land purchased by Jews from Arabs after 1967.

I cannot believe that a Northeastern University Law Professor is unaware of the Peace Now report in 2006, and its amended report in 2007, which shows that the majority of the West Bank settlements, including the outposts considered by Israel to be illegal, are built on what the Civil Administration itself considers to be Palestinian private lands. Or what about the Ofra settlement, which then Vice Prime Minister Haim Ramon, said was built almost entirely on private land? Not a week goes by without a Haaretz article that belies the official state position. Where has Phillips been for the last twenty years?

As for Phillip's own arguments: well, consider this one:

Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today's Israeli settlements, for example, in Hebron and the Etzion bloc outside Jerusalem. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, as in the case of Hebron, the community's population was slaughtered. Is it sensible to interpret Article 49 to bar the reconstitution of Jewish communities that were destroyed through aggression and slaughter? If so, the international law of occupation runs the risk of freezing one occupier's conduct in place, no matter how unlawful.

In fact, if Article 49(6) allowed an occupier to reestablish by force ethnic communities that no longer existed, then that would give license to all sorts of irredentist schemes. For example, since Israel's occupation of the areas outside the 1947 Partition Plan is still not formally recognized (except, perhaps, by the PLO), this would license Palestinian irredentists who wish to reconstruct the 500 villages that Israel destroyed during and after the 1948 war. (Phillips seems to be unaware that Israel has tripled the territory of the Ezion bloc under the rubric of "rebuilding a destroyed community")

But my favorite argument – the real doozy – the one that illustrates the depth of Phillips' grasp of the situation here -- is the thought experiment that he suggests:

Suppose a group of Palestinian Arabs who are citizens of Israel requested permission to establish a community on the West Bank. Further, assume that Israel facilitated the community's establishment, without the loss of their citizenship, on land purchased from other Palestinian Arabs (not citizens of Israel) or on state land. Would establishment of this settlement violate Article 49(6)? If not, how can one distinguish the hypothetical Arab settlements from Jewish settlements?

Let's grant him, contra sixty years of experience, that the state facilitates the establishment of any new community of "Palestinian Arabs who are citizens of Israel" (what a pleasure to see that phrase used in Commentary!) Would it do so on land that it will claim during negotiations? Or land that it would trade for other land? Then clearly that would be a violation of Article 49(6), no matter who Israel placed there.

Reading articles like that of Phillips reminds me of the story that Gershom Gorenberg told me once. When attacked by a group of well-meaning, but clueless, American Zionists, he said to them, "You are the best reason I can think of for aliyah – at least in Israel I don't have to listen to such narrishkeit."

Serves me right for reading it.


Anonymous said...

There's a simple response to this sort of claim--one man, one vote. If they want the land, they get the people living on it.

Not that I'm pushing for the one state solution (or against it), but what exactly do these people propose to do to the Palestinians living there? Well, I guess I know the answer--apartheid or expulsion.


YMedad said...

a) this throwaway, "Vladimir Lieberman", cheapens your post. Are you arguing legally or ideologically?

b) you excluded Yehudah Blum (here); Stephen Schwebel (here); Howard Grief (here and also here); Eliav Shochetman (here and also here); Michael Curtis (here).

Anonymous said...

Your blog keeps getting better and better! Your older articles are not as good as newer ones you have a lot more creativity and originality now keep it up!

Jerry Haber said...

Yisrael, thanks for providing links to more rightwing Zionist lawyers and legal experts whose views have been overwhelming rejected outside of Ariel and the corridors of the ZOA.

For you I added "Avigdor"

Jerry Haber said...

Yisrael, thanks for providing links to more Zionist lawyers and legal experts whose views have been overwhelming rejected outside of Ariel and the corridors of the ZOA.

Actually, you prove my point: the big guns you mention - Blum and Schwebel -- wrote their pieces shortly after the Six Day War or during the early seventies. Even Curtis (whose piece I do not have free access to, and to whom Burton and Falk wrote a response) formulated his take before Oslo.

The other more recent authors you mention (hey, how about Dore Gold)are either settlers, or rightwing orthodox professors, or lawyers who teach in the territories. So this actually proves my point that the arguments which were advanced by Israel and supporters shortly after the occupation were simply rejected by international law experts, leaving them to repeated recently by rightwing settler types like yourself.

That is because many of those arguments no longer apply given the length of the occupation, the gross violation of human rights in the territories, the expansion of the settlements, and the revolt of the indigenous population in the late 1980's and the early 2000's.

So the only people who support the legal argument TODAY are rightwing Zionists, and nobody of any serious international stature.

A bit depressing for your side, isn't it? But hey, who cares about the legal status, since it is only the laws of the goyyim?

YMedad said...

You're welcome. Despite the sarcasm, defensive or offensive, I try to keep to a neutral discussion of issues, something my 'other-side' interlocutors can't seem to do. See here. Gee, did I deserve to be banned?

And as for the Magnes moniker, as someone who tried to get the state of Israel inadvertantly destroyed when he met Marshall and Truman in May 1948 (see the P.S. here(, I really would be wary of a Magnesite.

And I'll try to let Avigdor know.

YMedad said...

wait. here's the original document of the Magnes-Marshall meeting.

now, as to your addition at 4:04, time does not alter the basic legal fact. Jews received international legal recognition to reconstitute their historic homeland; that homeland included at least Israel + J, S, & G; the Arabs refused the UN's 1947 suggestion; they continued warfare with the purpose of destroying Israel; Israel's war in 1967 was defensive.

Put all those into one basket and my conclusion is that - and pay attention since your snideness at times can cause you temporary laxity - no matter what political framework exists in J, S & G (Judea, Samaria and Gaza if you or other readers didn't catch on) - Jews have the right to live, reside, cultivate, etc. (the Mandate used the term "close settlement" but I avoid that word "settlement") throughout that area.

Of course, all the other lawyers seem to be left-wing but why should political perversity interfere in law?

Jerry Haber said...


The issue is not leftwing vs. rightwing. The issue is between rightwing Jewish supporters of Israel and everybody else. Show me some prominent conservative non-Jews in international law who back the position that law professors at Bar Ilan and the College of Ariel back. Show me the liberal hawks like Dershowitz who support the legality of the settlements and dayyenu.

As for the Magnes business, both accounts of the meeting with Marshall have Magnes calling for an arms embargo and financial sanctions on both sides in order to impose a truce. How this translates into your mind to "indadvertently destroying the state" (which had not been declared that) is beyond me.

Jerry Haber said...

As for settlement, I have no problems with Jews living in a Palestinian state. I never said I did.

YMedad said...

To your: "As for the Magnes business, both accounts of the meeting with Marshall have Magnes calling for an arms embargo and financial sanctions on both sides in order to impose a truce. How this translates into your mind to "indadvertantly destroying the state" (which had not been declared that) is beyond me."

An arms embargo and financial sanctions at that stage would have led to the quite probable destruction of Israel, its state to be declared 10 days hence (you really want to quibble on that? after all, it would have taken more than 10 days to get the sanctions going. jeez.) I presume you know the Arabs had already been circumventing all other embargoes as was Israel but a US-led embargo would have been a death kneel. To even think to offer such a plan is evidence of blind messianism with no touch of reality not to mention realpolitik or understanding of what utopian dreams can lead to. What other account? Sheila/Susan Hattis' PhD is on a shelf somewhere so I don;'t know if it's in there. But there was also the meeting with Truman with no record of content. To think that such a personality - and a Rabbi - would reach that high to go against the Zionist Movement and the Yishuv is mindboggling as regards Magnes' own ego.

Jerry Haber said...

Whether a US embargo would have been a death knell or not is pure speculation. His motives were to stop the fighting. Ironically, the truce in the end helped the Zionists, did it not?

I agree with you that Magnes had a big ego. Hardly unusual for leaders, or, for that matter, for rabbis. But he also had the ear of the US State Department. Had another president been in there besides Truman...well, more speculation.

Menachem Mendel said...

"So the only people who support the legal argument TODAY are rightwing Zionists, and nobody of any serious international stature."

I would hope that someone's opinions would be judged on how convincing they are and not on their political affiliation. As to "international stature," I have heard plenty of people of international stature hold opinions which I thought to be easily disputed to put it nicely.

I also think that you may have to distinguish between whether the West Bank is legally "occupied territory" and the legality of settlements. Here is another opinion of someone who past position in the IDF will hopefully not cause you to dismiss their opinion out of hand.

Lastly, one can still be in favor of a Palestinian state in the West Bank and think that the legal situation may be a bit murky and that the Goldstone Report was a hack job.

Tobias said...

"I would hope that someone's opinions would be judged on how convincing they are and not on their political affiliation."

You would? Really? So you don't believe in conflict of interest in criminal or civil law either? You wouldn't mind a judge deciding a property dispute concerning his family members, or even one in which he is involved himself, in a civil court?

Because, you know, that is literally the situation here. It's not about some murky "political affiliation", it's about the simple fact that an inhabitant of a settlement, or someone who is related to settlers, or close friends with settlers, cannot be a neutral judge of a settlement's legality.

Any judge or juror would immediately be dismissed from any civil or criminal case in which his own interests were so obviously at stake. To claim that things are different here is irrational and irrelevant.

Jerry Haber said...

Menachem Mendel,

"I would hope that someone's opinions would be judged on how convincing they are and not on their political affiliation."

I did not say that their arguments were not convincing because of the political affiliation. On the contrary, if they were convincing, they would be accepted by people who are not of their political affiliation. I merely noted that nobody advances or accepts the argument that the West Bank is not occupied territory nowadays except rightwing Zionists.

And you have proven my point, by presenting a position paper offered at an (extremely) rightwing Zionist think tank, the Jerusalem Center for Public Affairs. Note that the author bases himself primarily on earlier authorities because he, too, apparently, could not find more recent authorities in international law that support his view. And he cites Israeli authorities.

Look, Serbian law professors may have been right when they came up with legal arguments that justified Serbian practices in the Bosnia war. The fact that they were Serbian does not automatically disqualify them.

But it should raise some eyebrows, no?

When the only people who hold a certain view are those who are directly interested in having it accepted, and whose biases lie in that corner, then it becomes questionable.

"One should distinguish between the legality of settlements and the question of whether the territory is occupied." Who doesn't make that distinction?

By the way, the question of what is military occupation nowadays is a difficult one. Traditionally, one criterion has been "boots on the ground." That criterion allows Israel to claim, with some justification, that Gaza is no longer occupied. However, in a modern technological era, there may be situations where one can have as effective -- and maybe even more effective -- control over territory and population without boots on the ground." Arguably, a military can know more about what a population is up to, and can influence it accordingly, nowadays, than during actual military occupations in the past. For example, leaders of a resistance movement in a territory under occupation with "boots on the ground" may be able to plan attacks against its opponents more effectively than in a day of almost total electronic surveillance and GSP mapping.

So a country may be effectively occupied even if it is not actually occupied, such as is the case of Gaza nowadays. De jure it may not be considered occupied, because the de jure definitions are outmoded.

When such a situation happens, then there will be dispute over whether a territory should be considered occupied or not. And that is the case with Gaza. Here it is not only Israel (or rightwing Zionists) who are saying that Gaza is not occupied territory.

Of course, Israel never considered its occupation of Gaza to be legally an occupation. So it is somewhat amusing to see it go to such a length to argue that the non-occupation is over.

"Lastly, one can still be in favor of a Palestinian state in the West Bank and think that the legal situation may be a bit murky and that the Goldstone Report was a hack job."

I don't know any intelligent person who thinks that the Goldstone Report was a "hack job", although I know people who think that there are many falsehoods in the report, and I know critics of the report.

YMedad said...

Your "if they were convincing, they would be accepted by people who are not of their political affiliation" is either an understatement, a facetious off-hand remark or a private joke.

You accuse the "right" of being the only ones to uphold a legal principle and cannot conceive that the main reason for the left not to agree is is not convincing?

Really, the left is so distinguished from the right in that it is neutral and pure of thought processes and extremely logical?

Menachem Mendel said...

"I don't know any intelligent person who thinks that the Goldstone Report was a "hack job", although I know people who think that there are many falsehoods in the report, and I know critics of the report."

The question is, at what point do the amount of errors and falsehoods make something a hack job, although I do appreciate its heuristic value.

Blum et al.'s approach is definitely the minority opinion. As to the possibility of Military Occupation 2.0, time will tell what that is determined to be.

As for conflicts of interest, they should be discussed, but not abused. Is no American allowed to comment on the legality of drone attacks in Pakistan? No small number of people claimed that the American bombing of Belgrade was illegal under international law, should we ignore what any American said about it? That there is a diversity of opinion among Israeli legal scholars shows that people are able to rise above their nationality, etc.

Jerry Haber said...

Yisrael, as I said before, I don't think that the legality of the occupation is just a left-right question. It is more a Jewish nationalist question vs. the rest of the world, left and right. I don't see many conservative jurists who are not Jewish leaping to the settlers' defense.

In short, there is a remarkable unanimity of opinion among left and right scholars who are not partisan that the settlements are illegal, especiallly in the last twenty years. I know that it is tough for the settlers to swallow.

But this is simply not a left-right controversial issue like, say, the war in Iraq or abortion.

I used the phrase "rightwing Zionists". Maybe that was misleading. After all, there are many Likud folks who consider themselve rightwing and Zionist, yet who are not particularly supportive of the settlers.

But let's leave that point.

As for Menachem Mendel, frankly, I don't see this as a controversial issue among Israeli legal scholars today, but I cannot speak with much expertise. I simply know of no international law experts in Israel today -- the sort that publish on this subject in peer-reviewed law journals -- who consider the West Bank not to be occupied territories. Maybe there are some, but as you said, it is a minority opinion.

It is not one's nationality that disqualifies him or her, but one's ideological biases.

5 dancing shlomos said...

west bank squatments are illegal, criminal.

east, south, and north squatments, takings also illegal, criminal.


magnanimous zionists occupy there, so ok.

Anonymous said...

Mr. Haber,

There is a disastorous situation in the territories currently. That's indisputable.

Why, though, does it even matter if the territories are classified as "disputed" or "occupied" under "international law"--if international law even exists?

Show me some prominent conservative non-Jews in international law who back the position that law professors at Bar Ilan and the College of Ariel back. Show me the liberal hawks like Dershowitz who support the legality of the settlements and dayyenu.

And if there were such scholars, would you grant any validity to their arguments?

Maybe I'm missing something.
Isn't it a better use of our resources to figure out a way to disentangle ourselves from the mess we've created than to split hairs over legal theories?

I guess that's why I'm not a professor . . .

Anonymous said...

Another magn(es)ificent article.

(The german equivalent adjective for "judenrein" would be "araberrein")

Anonymous said...

"Only the laws of the goyim" ?? If Israel signed the Fourth Geneva Convention (and indeed it did), then GIV is Isreal's law as well as the law of (many) goyim.

Those who argue that all of Israel/Palestine is Israeli territory (disputed by disputatious Palestinians but not "occupied, because you cannot occupy your own territory) are arguing that Israel is not a democracy because Israel has never offered a vote (or other incidents of democracy) to those who live in OPTs -- never mind that there qare two systems of law, one for Israel's citizens and another for non-citizens living in OPTs.

BTW, what system of laws is there for non-citizens living or otherwise present in pre-1967 Israeli territory?

Cheers. Keep up the good fight.

Ibrahim Ibn Yusuf said...


You may be amused to know that I independently rebutted Phillip's article using almost the same arguments as you here on my blog.

Your Correspondent said...

Mr. Haber:
The older laws or treaties are not legally obsolete. For example, the Hague Convention is still international law.

Labeling those who hold a position as "Right-wing" in order to dismiss them is not an argument. Will any of those you dismiss as right-wing oppose Israel's socialized medicine system?

That the West Bank was conquered is not relevant. A nation can conquer it's own territory, as the Soviet Union did in WWII.

The Partition Plan of 1947 is not international law.

The Palestine Mandate and the San Remo Convention of 1920 are indeed international law and they both were accepted by the League of Nations and subsumed into the UN. They both grant Jews national rights in territory that includes everything from the river to the sea. Arabs are granted civil and religious rights in that area.

Presumably religious rights do not include a religious obligation to kill Jews.

Treaties don't die because they are old. Neither do legal arguments.

Most of your arguments are merely appeals to authority. The rest of your arguments are about recency, which is totally irrelevant.

The earth was, long ago, generally considered to be flat by the vast majority. That didn't make it true.

Israel was not created by the illegal Partition Plan of 1947, Jewish Palestine was created by the two treaties mentioned above. The nation of Israel was created by it's Declaration of Independence and the Jewish Agency. Nations have the right to make laws, including laws of eminent domain.

Your Correspondent said...

Having worked through all of the above, it must be pointed out that international law does not make history. Armies and various "Forces", such as technology and possibly even class struggle make history.

The Nazi invasion of Poland was not prevented, of course, by international law. And the Nuremburg Trials after the war had no treaty or custom to back them up.

If international law was really law, then nations would not need armies. In fact, nations would not be allowed to have armies since there would have to be a world government with a monopoly on violence.

International law did not defend the Jews from the Holocaust and did not defend the Jews from the Arab armies in 1948. I trust my life to the IDF but I would not trust my life to international law.

International law enters history mainly as a propaganda tool. Various media including this blog use it to bludgeon their enemies. I use international law to defend the Jewish People. What do you use it for?

Jerry Haber said...

Mr Metternich,

Some clarifications.

1. Old treaties and laws can be superseded.

2. I was not using rightwing dismissively or as a perjorative, merely descriptively.

3. A nation can conquer its own territory, but the West Bank is not recognized as Israel's territory, nor was Kuwait recognized to be Iraq, though Iraq claimed sovereignty over it.

4. Neither the San Remo Convention nor the Palestine Mandate say anything about a Jewish state. If the Jews had some sort of homeland in a Palestinian state (say autonomous region) both the mandate and the San Remo Convention could be fulfilled. And, of course, both could easily be superseded by an agreed upon solution. I know the Zionists didn't look at it that way, but big deal. Who says that the Zionist interpretation is the only one. Ditto for your rather bizarre interpretation of the national rights granted. You are putting forth interpretations that were rejected sixty years ago. If things were so clear and obvious, there would have been no need for the Peel Commission, the Biltmore Program, the Partition (accepted by the Jewish Agency, as you recall) Trusteeship, etc.

Indeed, my arguments are appeal to authority. That is because in law, as in many other subjects, including science, what is reasonable to believe is what the majority of experts believe. And the greater the majority, the more plausible. That is how science is done -- you do experiments and you submit your papers to journals that have peer-review. Ditto for law. Now, it is possible, in theory, that everybody is wrong and you are right. But your arguments are so bad and tendentious that they are rightfully rejected, just as the Serbian jurists' arguments justifying their forces' war crimes are.

As for the flat-earthers, surprise -- you are also wrong here! Scientists from Aristotle all believed that the earth was a sphere. But what about that Columbus business about sailing off the edge of the earth? A nineteenth century American history textbook invention.

You see, you don't have any proof for your assertion about belief in flat earth -- besides, perhaps, your mistaken third grade geography teacher. And you talk about my appeal to authority!

I am glad that you accord nations the right to make laws including laws to expropriate land from non-citizens in occupied territories. That would have been a good argument for the Germans and Japanese to use in World War II. But since then, the Fourth Geneva Convention was ratified.

Ah, but you are skeptical about the force of international law. Yet you are not skeptical about the force of international treatises that favors your side.

Let me sum up your position, Metternich:

"My side is always right. When international laws and treatises favor it, hurray for them. When they don't, who cares about them, it is all realpolitik and power."

Spoken like a true chauvinist!

And yes, I mean that term perjoratively!

Anonymous said...

I am no expert in international law, but the result reached -- that Jews could be massacred in Hebron and Gush Etzion, for example -- and could not consistently with international law rebuild those communities -- is absurd. By your reasoning, had the German won the Second World War the Poles would be precluded by international law from reclaiming their historic territory. Clearly the intention of 49(6) could not have been to freeze all acts of aggression in place.

I am not suggesting that the author of the Commentary article is right, but rather that this issue must be more nuanced than you present it as being.

Jerry Haber said...


What do massacres in Gush Etzion or Deir Yassin have to do with appropriating territory by force? Is there a law that says that wherever there was a massacre, the communities have to be rebuilt and sovereignty returned to the holder at the time of the massacre?

By the reasoning of the 4th Geneva Convention, had Germany seized parts of Poland in World War II, those parts would not be recognized as belonging to Germany, and Poland would have the right to use means to recover its lands.

YMedad said...

MZ/JH writes: "Is there a law that says that wherever there was a massacre, the communities have to be rebuilt and sovereignty returned to the holder at the time of the massacre?"

I don't know. But since the international community had decided in its most supreme body in 1923 to affirm the reconstitution of the Jewish national homeland and, unfortunately, agreed that the Mandate principles be 'suspended' (not voided) as regards the territory of Transjordan which was partitioned from that reconstituted Jewish homeland, surely Judea, Samaria and Gaza still were to become part of the Jewish state. The agressive violence by Arabs can surely permit Jews to reassert their rights once the illegal acts of violence were offset.

Jerry Haber said...

Yisrael, the international community doesn't formally recognize the sovereignty of Israel over West Jerusalem -- and you are talking about the West Bank?

I was really surprised by your comment. You of all people know the entire disputes, counter-claims, interpretations and counter-interpretations, and, indeed, the history of the various powers attitude toward the Jewish homeland and a Jewish state (quite obviously not the same thing)

YMedad said...

Of course you are correct, at the moment. You do know that the Zionist clock ticks away at a much different rate than other timepieces.

But I was trying to reassert the starting off point. As in space travel, one small degree error will set you off-course a million miles.