Doc's Talk: The Question of Settlements

Friday, June 19, 2009

The Question of Settlements

CAMERA

The shift in American policy toward Israel and the Arab-Israeli conflict has brought the issue of Israeli settlements to the fore. Jewish settlements in territories acquired by Israel during the 1967 war have been criticized as contravening international law and presenting an obstacle to peace; President Obama demands they be completely frozen as a pre-condition to peace negotiations with the Palestinians.. There is a disturbing lack of objective information in the media surrounding the issue and especially regarding the legality of the settlements.

The Washington Post, for example, seems to have embarked on an anti-settlement campaign, full of deceptive one-sided claims and misrepresentations. In the past four days, the Post has published four commentaries condemning Israeli settlements.* It also reported on a 30-year-old State Department memorandum claiming that establishing new Jewish communities in territory gained during the 1967 Six-Day War contradicts international law ("Old Legal Opinion Raises New Questions; 1979 State Dept. Document Found Israeli Settlements 'Inconsistent' With the Law," June 17, 2009).

What the article ignores, however, is that the legal opinion (written by Herbert J. Hansell on April 21, 1978) was based in large part on Professor Julius Stone’s 1959 analysis, Legal Controls of International Conflict, and that Stone himself adamantly argued not only that Israeli settlements are legal under international law but that the effort to designate them as illegal is a "subversion...of basic international law principles." This suggests that Hansell’s legal opinion was based on a misconstrual of the intent and meaning of Stone’s earlier analysis. Nor does the article mention any of the authoritative legal counter opinions to Hansell's.

What are the facts? And how does Mr. Obama's administration differ from previous U.S. administrations regarding Israeli settlements?

In our detailed section, we provide a roundup of articles on the issue as well as a critique of the Washington Post article.

*(including editorials and Op-Eds:"Obama's Friends, Aides Help Shape Stance on Settlements; President Sees Expansion as Blocking Mideast Peace Deal"( June 13); "The Settlement Rift; President Obama has delivered a necessary shock to Israel's right-wing government. Will he now comprise?" (June 14); "The Settlement Facts" by Daniel Kurtzer, and"Netanyahu Feels the Heat" (June 17) by Harold Meyerson)

Regarding the Post article "Old Legal Opinion Raises New Questions":

*Reporter Glenn Kessler notes only that the State Department's opinion cited "Article 49 of the Fourth Geneva Convention, which states that an occupying power 'shall not deport or transfer parts of its own civilian population into the territory it occupies.'"

Mentioning only that "Israel has insisted that the Geneva Convention does not apply to settlers and broadly contests assertions of the settlements' illegality," Kessler provides no explanation as to the basis of Israel's rejection of the application of Article 49 to its situation in the territories. Nor does he cite any of the legal opinions countering that of the State Department's.

In fact, the inapplicability of Article 49 to Israeli settlements was made clear by prominent international jurists. The late Professor Julius Stone - considered a premier legal theorist - maintained that the effort to designate Israeli settlements as illegal was a "subversion. . . of basic international law principles. In his book Israel and Palestine: An Assault on the Law of Nations, Stone set forth central principles of international law upon which Israel's right to settle the West Bank is based. He discussed the inapplicability of Article 49(6) of the Fourth Geneva Convention to the case of Israeli settlement.

Stone drew upon the writings of Prof. 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 the 1967 Six-Day War). Schwebel 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 Strip, 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 territories of a High Contractin g Party; their occupation after 1948 by Jordan and Egypt, respectively, was illegal; neither country had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate which encouraged close Jewish settlement of the land.

In addition, Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to work or death camps. It 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.

* The Post neglects to mention that legal opinion by Carter's State Department legal advisor Hebert J. Hansell's (which, incidentally, was dated April 21, 1978) was based in large part on and cited Professor Julius Stone's 1959 analysis, Legal Controls of International Conflict: a treatise on the dynamics of disputes- and war-law. Given that Stone himself adamantly argued that Israeli settlements are legal, it certainly suggests that Hansell's legal opinion was based on a misconstrual of the intent and meaning of Stone's earlier analysis.

*The article suggests that Hansell's memo still stands, never having been "revised or revoked." And while Kessler acknowledges that President Ronald Reagan "said he disagreed" with Hansell's legal opinion and did not consider Israeli settlements to be illegal, he discounts this, saying that Reagan's "State Department did not seek to issue a new opinion."

But Reagan did not need to issue another State Department opinion as he didn't have to; the president's position trumps the State Department's legal section, just as President Truman's decision to recognize Israel in 1948 overturned State's desire not to recognize the Jewish state.

Regarding the Washington Post's general one-sided coverage of the issue:

*Post articles and commentaries about Jewish communities in the West Bank maintain a virtual curtain of silence on the principal international law in this case, the League of Nations' British Mandate for Palestine. Article 6 encouraged "close settlement by Jews on the land, including State lands not required for public use." (This originally was to include that part of Palestine east of the Jordan River, but Jewish settlement there was suspended until "practicable" when the British created Trans-Jordan [now Jordan] in the early 1920s.) Most settlements have been built on land that was state land under the Ottomans, British and Jordanians before Israeli control

The U.N. Charter, Article 80 notes among other things that "nothing in the [U.N.] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments." That means that the Mandate's encouragement of "close Jewish settlement" west of the Jordan River remains a principle of international law. Though Post readers are not told, this indicates that settlements, by Israelis who were not forcibly transferred in, among Palestinian Arabs not forcibly transferred out, in disputed territories the sovereignty of which is to be resolved through negotiations, are not illegal — any more than are Arab settlements in the region.

Journalists, policy makers and other commentators may debate the political advisability of the settlements, but any discussion of the legality of the communities under international law should include a full and factual account.

The following articles provide background about the history and legality of Israeli settlements:

The Debate About Israeli Settlements – Ricki Hollander, CAMERA
Discusses the history and purpose of Israeli settlements and the legal arguments regarding them.

Former Israeli Prime Minister Ariel Sharon and former U.S. President George W. Bush's Exchange of Letters Regarding Israeli Settlements – Ha'aretz
Provides the text of the letters exchanged between the two heads of state regarding Israeli settlements.

Letter from Dov Weisglass to NSA Condoleezza Rice – Ha'aretz
Provides the text of Prime Minister Ariel Sharon's bureau chief, Dov Weisglass, to the U.S. National Security Adviser Condoleezza Rice presenting the agreements reached between Sharon and U.S. President George W. Bush during their meeting at the White House on April 14, 2004.

US Resolution 242 According to its Drafters– CAMERA

Two Articles by Eugene Rostow, former U.S. Deputy Secretary of State and Distinguished Fellow at the U.S. Institute of Peace, on Legality of Settlements

U.S. Policy on Israeli Settlements – Dore Gold, Jerusalem Center for Public Affairs
Discusses past international agreements and U.S. policy on Israeli settlements.

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

Doc's Talk