For
David Kretzmer, “The chickens come home to roost” (August 26), mere
legal opinions can harden into established norms in the field of
international law if large numbers of eminent lawyers support those
opinions, even if other equally eminent lawyers do not. Further,
Kretzmer suggests that black-letter norms are also established when a
large majority of states repeatedly pronounce certain activities of
another state to be illegal, even if the said majority behave in much
the same way or worse in analogous situations. Fortunately for Israel,
and common sense, binding rules of international law are not made that
way.
The hazards of adopting a ‘black and white’
moralistic approach to questions of international law – especially in
connection with the Israel- Palestinian conflict – were laid bare by
Prof. Michael Curtis of Rutgers University in a groundbreaking article
in 1991. To paraphrase Curtis, dogmatic generalisations about the
legality or illegality of Israel’s West Bank settlements belong in the
realm of polemics, not serious legal analysis.
The basic error is to treat all the settlements
alike when commenting on their international legality. For example,
settlements that have been built without the authorization of the
Israeli government have been held by the Supreme Court to be illegal
even under Israeli domestic law. Conversely, Cambridge University Prof.
James Crawford, who is one of the world’s most eminent international
lawyers and is generally critical of Israeli policies, published a legal
opinion in 2012, in which he concluded that some of the settlements,
such as those of the IDF’s Nahal outposts are “probably lawful.”
The whole question of the international legality of
settlements is fraught with complexity – which is one of the reasons
Crawford’s opinion runs to 60 pages. He and others have argued that
Article 49, paragraph 6, of the Fourth Geneva Convention (Geneva IV)
prohibits civilian settlements. It states: “The Occupying Power shall
not deport or transfer parts of its own civilian population into the
territory it occupies.”
Nobody suggests that the Israeli government has
deported settlers to the West Bank. The legal question is whether by
sponsoring and financing civilian settlements, the Israeli government
has carried out a population “transfer.” In its advisory opinion in
2004, the International Court of Justice (ICJ) answered this question in
the affirmative.
The late Julius Stone, an outstanding Australian
international jurist, had a contrary opinion. His view was that a
population “transfer” within the meaning of Article 49(6) requires a
“magisterial act” or fiat by the government of the occupier state. In
his view, which is still shared by many eminent international lawyers,
mere sponsorship and benefits do not amount to a population “transfer.”
In any event, the ICJ’s advisory opinion was just
that – a non-binding opinion. Like the endlessly repeated UN resolutions
on the subject referred to by Kretzmer, it has no legally binding
effect. In fact, the ICJ’s conclusions were subjected to some serious
criticisms, not least because the questions referred to it by the UN
General Assembly were so loaded with tendentious assumptions as to
prejudice fair determination of the issues.
The ICJ also failed to consider the effect of the
original League of Nations Mandate of 1922, which recognized “the
historical connection of the Jewish people with Palestine” and
authorized “close settlement by Jews on the land, including State lands
and waste lands.”
When the UN replaced the League in 1945, the Mandate
continued to operate by virtue of Article 80 of the UN Charter.
Kretzmer waves this history aside as having been made irrelevant by the
establishment of the State of Israel in 1948 as the State of the Jewish
people.
He leaves unanswered the opinion of Eugene Rostow, a
former Dean of Yale Law School and US Under Secretary of State for
Political Affairs, that because the West Bank is an unallocated part of
the British Mandate, its terms still apply to that territory and
settlements can continue until a new state is created or an annexation
takes place.
The misuse of international law as a tool of
political condemnation is especially unhelpful right now while Israeli
and Palestinian representatives attempt to negotiate comprehensive terms
of peace on the basis of “two states for two peoples.” Moralistic
polemics about the settlements is the last thing needed by negotiators
on either side, and will simply make it politically more difficult for
Palestinian leaders to agree to a land swap arrangement, a sine qua non
of any final peace agreement.
Attorney Peter Wertheim is the Executive Director of the Executive Council of Australian Jewry
--
Yisrael Medad
No comments:
Post a Comment