‘SETTLEMENTS LAW COULD OPEN ISRAELIS TO WAR CRIMES PROSECUTION’

T. Belman. This article covers the case against the law quite well but hardly addresses the case for them.

The NGO petition to the High Court of Justice is the second one to be filed against the law.

BY TOVAH LAZAROFF, YONAH JEREMY BOB, JPOST,

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The Settlements Regulation Law” could place individual Israeli politicians, military personnel and civilians before the International Criminal Court at The Hague on charges of war crimes, 13 NGOs told the High Court of Justice on Sunday.

The 13 organizations, led by Yesh Din and Peace Now, issued the warning as part of their 63-page petition to the High Court against the law, which was passed on February 6.

The petition is the second to be filed against the legislation, which retroactively legalized some 4,000 settler homes build on private Palestinian property, offering compensation to the landowners in return.

In asking for an immediate injunction against its implementation, the NGOs cited the law’s criminal nature under international law and argued that it constituted annexation of portions of Area C of the West Bank.

“The petition stresses that the implementation of the provisions of the law may serve to incriminate Israeli citizens and security personnel who would implement it, as well as the MKs who voted in support of the law, as their actions may be considered war crimes according to international criminal law,” the petition said.

In approving the law the Knesset acted outside its jurisdiction, the organizations said, because it has no authority over the West Bank, which is beyond the border of sovereign Israel.

“To date, and for nearly 50 years, Knesset legislation in relation to the West Bank was limited to individual legal rights – applying only to Israeli citizens who live in the West Bank – while legislators refrained from directly administrating the area itself,” the NGOs said. “Legislating this law is a clear act of sovereignty, and thus constitutes unlawful annexation.”

Under the new law settlers are defined as local residents and their rights are given priority over those of the Palestinians, the petition said.

Legislating a law that deprives people of their property, through a process in which they are not represented, is the “textbook definition of tyranny.”

Under the rules of belligerent occupation, which are applicable to the West Bank, Palestinians and their property must be protected by the Israeli military that rules that area, the petition said. They cannot confiscate that property for the benefit of Israeli citizens, it added.

Although the legislation offers compensation to the Palestinian landowners, the NGOs said it violated both Israeli law and regulations that are the foundation of international law, including the Fourth Geneva Convention of 1949, The Hague Regulations of 1907 and laws dating back to the American Civil war.

Attorney-General Avichai Mandelblit has argued that the law is unconstitutional and told the High Court that he will not argue for it on the state’s behalf, explaining that will be done by a private attorney, the NGOs said.

Their petition was similar to the one filed on February 8, by the NGO Adalah, but gave a deeper description of the issues.

In that petition, Adalah did not emphasize that Knesset members who voted for the bill could be implicated in war crimes.

Sunday’s petition mentioned that the prohibition of confiscating property other than for military necessity (as opposed to the socioeconomic and ideological logic underpinning the Settlements Regulation Law) is not remotely like some international law rules. Rather, it dates back at least to the Lieber Code, enunciated by US president Abraham Lincoln more than 150 years ago.

It highlighted what it called the basic moral and legal inequality of the Knesset passing a law to take land from individual Palestinians who do not even get to vote for the MKs who, by passing the legislation, are taking it from them.

The petition contends more generally that individual Palestinians have no political means for opposing confiscation of their land.

It also argues that the law overturns the standard process for land confiscation, dropping all hints of procedural due process and protections for the property owners.

Confiscation laws are supposed to apply for the benefit of future public development and not for individual persons who have already illegally erected structures on the land in question, it said.

Moreover, the petition argued a new point by saying the law does not meet Israel’s identity as a Jewish and democratic state.

Adalah sidestepped this argument, likely due to its preference for a onestate solution, or at least its rejection of combining a democratic state with Jewish religious principles.

The NGOs said the law ironically applies to the West Bank, an area which is neither mostly Jewish, nor democratically run.

Quoting an article by legal scholar Aviad Hacohen, the petition explained that Jewish values only allow confiscating land when there is no other choice and with a minimum imposition on the property owners.

The petition says the law flagrantly exceeds those boundaries.

The 13 groups that filed the petition did so on behalf of 23 Palestinian local council heads and four Palestinian landowners. At issue, they said, are 1,135.7 hectares of private Palestinian property that has already been illegally seized.

Supporters of the law have argued that the offer of compensation places Israel in compliance in international law. Right-wing politicians have further explained that the law was the only way to prevent what would eventually be the evacuation of close to 4,000 homes.

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28 Comments

  1. Only in Israel, is someone accused of “war crimes” for building a home. This is a case of anti-Semitism, on the part of the international community.

  2. xxx

    My understanding -which may be wrong- is that since Israel is NOT a member of the International Criminal Court, (nor is the U.S.A. and Australia and about 50 more ) it’s citizens cannot be prosecuted unless Israel waives the jurisdiction barrier and allows it. Also, For a person of a non-member state to be successfully prosecuted, the alleged crime must have been committed on the sovereign soil of the complaining state, which must also be a member of the Court.

    I’m sure we’ll have lots of comments on this very point. The Arabs of YESHA are not sovereign, and this has been pointed out to them in previous cases that they brought before the court.

    I only vaguely understand the legal ramifications but would understand them if laid out in a post that I look forward to read. I don’t know what all the fuss is about in Israel, the Land belongs to the Jewish People, and the fact that Mandelbilt has had the outrageous gall to say that he will appear AGAINST the Government at the High Court, is so chutzpadik that he deserves to be thrown into the river, in mid winter. Of course, I mean fired with a departing caress from the proverbial hob-nailed oversize boot -in -the-backside. Who the hell is asking him to do this dirty work against his own employer…. Or is he allowed to appear as pro bono publico…….

    He doesn’t seem to me to be the type of Jew who would work gratis….on his own initiative…

  3. xx

    On another point, I would be happy to read a post explaining to us all, what constitutes “illegal annexation” by Israel of it’s own Land. Since The San Remo Conference, followed by several other international agreements, The Jewish People vested in The Sovereign Jewish State Of Israel does not need to annex, unless by doing so as a sort of emphasis….. As the recently passed Law retrodates….another law could be passed to do the same, in substituting the State of Israel for the IDF Military government of YESHA thus stopping the balagan over lack of jurisdiction causing “illegal annexation”…….

    Israel, in a position to successfully claim title over all the Land dating back to the early 1920s can do as it pleases.

    At least I see it this way. Israel is my heritage.

  4. 2. Practice By RuleRule 130

    Practice Relating to Rule 130. Transfer of Own Civilian Population into Occupied Territory
    Note: For practice relating to ethnic cleansing, see Rule 129, Section C.
    Quick navigation
    I. Treaties
    Geneva Convention IV
    Article 49, sixth paragraph, of the 1949 Geneva Convention IV provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
    Additional Protocol I
    Article 85(4)(a) of the 1977 Additional Protocol I provides that “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is a grave breach of the Protocol.

    ICC Statute
    Under Article 8(2)(b)(viii) of the 1998 ICC Statute, “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts.

  5. A “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies

    Well, since Jewish revenants came back on their own will,they were obviously neither “deported or transferred ”
    Israel has the most valid legal claims over “the territory it occupies”
    Futhermore ,Jews were present in Gush Etzion till 1947 in Hevron till 1929, in “east Jerusalem” and Gaza till 1948 and forcefully expelled afterwards: major war crimes here and no courts seem interested….
    We Jews must stop adhering to international legal standards nobody but us comply with (let us stop being freiers for once) !

    B Article 85(4)(a) of the 1977 Additional Protocol I provides that “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is a grave breach of the Protocol.

    ….
    Again, meaningless within the context unlike the Turkish invasion and subsequent occupation of Northern Cyprus
    The same for Chinese Xink Kiang where Uigours are deprived of their most elementary rights…..

  6. The proper interpretation of art 49 is that it refers to forcible transfer.

    Israel didn’t sign on to the protical so isn’t bound by it.

    But it is the opinion of the Levy Report and many lawyers, myself included, that the Genevfa Convention doesn’t apply because Israel isn’t occupying the land of a signatore to the convention.

  7. trump Said:

    B Article 85(4)(a) of the 1977 Additional Protocol I provides that “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is a grave breach of the Protocol.

    so I guess the first move by the ‘The 13 groups’ to prove their case/point would be to start prosecution of the hashemites who did violate international law by moving population onto J-S land and unlawfully registering land in their name.

  8. In 1920 the Allies agreed the Jewish People was to receive, in a trust, the right to settle in all of Palestine west of the Jordan River. The Mandate for Palestine was a trust agreement that incorporated that right and also a collective right to rule there when it met the condition that its population also attained the capability to exercise sovereignty within defined areas. (The conditions for the latter are codified in 1933 Montevideo Convention.) The trust agreement was self-executing. The Mandate for Palestine was confirmed and approved by 53 states in 1922 which constituted a tacit recognition of Jewish statehood. The Arabs have advanced three claims invalid under international law, that the collective rights to self-determination recognized in 1922 are no longer valid. 1. They were limited by the 1947 Partition Resolution (that in fact was only a recommendation), 2. They were prohibited by the regulations under the IVth Hague Convention {which applied only to “belligerent occupations” assumed to be those in which the displaced state had sovereign rights – Jordan did not), and 3. Settlement was prohibited by the IVth Geneva Convention where the people settling outside the Green Line had been deported or transferred by the state, (not where they transferred themselves voluntarily).
    The conditions of the Mandate for Palestine were met inside the Green Line in 1948 and for the remainder of Palestine east of the Jordan, in 1967. Having met those conditions, the Jewish People have, under the Mandate as interpreted by the intention of the creators of the trust, the collective right to political self-determination, including the right to determine when, it is within the public interest to impose the right of public condemnation of private land on reasonable terms. It seems most reasonable that it is in the public interest to avoid the destruction of valuable amounts of improvements to real property and the disruption to the lives of the inhabitants, where the developers were unaware that the territory built on was private property and no claimant made their interest known prior to the development and the former owner could receive reasonable compensation.

  9. Edgar G. Said:

    I only vaguely understand the legal ramifications but would understand them if laid out in a post that I look forward to read.

    Read: “The Importance of Treaties” by Sitting Bull

    “Building Peace and Trust Through Treaties” Geronimo

    ” As Long as the Rivers Run ” Chief Red Cloud

  10. @ trump:
    xxx

    I reply to only this post as it exemplifies all the others following. I knew that my comments would unleash a long list of cogent and legally conformed posts and they all agree with what I had already understood to have been the legal positions. Ted, as a lawyer lays out the legal portions covering the present situation, and adds that that Israel dealing with it by court proceedings obviates the need for ICC interference. Which I’ve seen written many times, including in decisions by the ICC, is conclusive. Yet it doesn’t stop the Arab Squatters and their acolytes from bringing nusiance claims, one of which brought Ben Fattah recently to YESHA.

    Another important point was raised by other posters like “Trump” that Jordan invaded and comitted belligerent occupation on the soil which was already occupied by Jews such as in Jerusalem and environs, Hebron etc. (and also on the land legally owned by a variety of Jewish entities, like the JNF for instance et al.) and Jordan not only transported or killed the occupants, but then parcelled out their possessions to their own people, completely illegal acts of piracy.

    Why has nobody, individual or Political Party pinned Netanyahu down as to his reasons for not releasing the Levy Report, which confirms the many other equally learned decisions of the most eminent international scholars the world ever had. Surely Trump already long ago knew that by International Law, The Jewish People Own the Land of Israel.

  11. Self-deportation of the Palestinians would be the best option. Make it sooooooo expensive to live where they ar now that they will move out. It’s happening here in Los Angeles, Retirees with money sold their homes and moved to Las Vegas or rural parts of the country and state as prices escalated upwards. Deprive them of income (USA/SA/UN/UNRWA/EU), increase prices, create expectations that will make them think that having fewer children will give them a higher standard of living (like in France and
    Germany) and make other areas more attractive to live. GONE.

  12. @ honeybee:
    xx

    Actually I understand them a little less than “vaguely” having spend several years studying law in my dim, very distant and misspent youth. I understand your comments as being ironic, and have always been in FULL sympathy with those who believed in the “White Man’s” treaties, only to be cruelly betrayed.

    It took many years for the Red Man to understand that a treaty made with their “friend” generally a lowly lieutentant or captain but known to them, could be immediately superceded at will by any of his superiors. They were treated abominably….often tricked by treaty to appear and then murdered, like Mangas Colorado for instance….

    It was a collision of cultures, like today with the Western World against the Arabs….. or the Romans against the Visigoths….(remembering my history-this example shows that the most advanced doesn’t always win)

    {{The only reservation I have is the indiscriminate slaughter with most appalling torture, of innocent women and children. Of course the Red Man was fighting for his very existance, but…… I’m looking at it from western eyes. Jewish at that.}}

  13. If our government can’t get their collective thumb out and do the right thing, nobody except Palis will be able to build, legally or illegally, in Yesha.

  14. xxx

    For TED- something interesting for YOU…..I have just re-read, had forgotten all about it until a lingering memory caught at me.

    It is the 1948 Proclamation by Ben Gurion about the admissibility of annexing all of the Land of Israel, not only the parts captured in the War. It is by Howard Grief, whom you may have known personally and about whom you certainly have heard.

  15. In addition to all of the above, the “Palestinians” are not a “High Contracting Party.” These protocols and Accords only apply to signatories. They have no legal standing in any genuine court. I don’t think the ICC counts as a real court. It is a purely partisan outfit like the UN and the EU it represents.

  16. I think Israel show go from the defensive to the offensive. Israel should actively intervene with personnnel, propaganda, diplomatic and lawfare, and funding in the political affairs of the EU, supporting separatist movements from the EU and within states.

    Israel should declare diplomatic war against the EU on its own turf.

  17. Sebastien Zorn Said:

    Israel should declare diplomatic war against the EU on its own turf.

    Tough guy !!!!!!!!!!!!!!! isn’t that the same old, same old begging!!!!!!

  18. Edgar G. Said:

    Actually I understand them a little less than “vaguely” having spend several years studying law in my dim, very distant and misspent youth

    Utter complete defeat is the only Peace Treaty that is or ever has been effective. “Never leave your enemy standing or behind you” Yamit82

  19. One can always count on antisemitic malfeasance to accuse Jews of anything. What CANNOT be done to ANY ONE can be done to Jews. Suffice to witness what has happens at the UN for 68 years!

  20. stevenl Said:

    Many of these may be antisemitic!

    Who isn’t anti Semitic ? The question is are they useful? “There is only one moral imperative, is it good for the Jews and Israel”. Dicha of Deborah

  21. Edgar G. Said:

    Actually I understand them a little less than “vaguely” having spend several years studying law in my dim, very distant and misspent youth.

    Vagary is the very essence of the Law.

  22. @ honeybee:

    This is similar to the saying that god favours the big battalions, supposedly from Napoleon, but as far back as maybe Voltaire, they were saying things like that. For example early 17th cent. Madame De Sevigne, now famous only for the letter collections she wrote to her daughter, mentioned that a military friend had written to her that fortune smiles on the bigger battalions, or something like that. I recall reading it about 50 years ago.

    So all we really can say is original is that ” there is nothing new under the sun”….and that’s from somewhere in the Torah, so history repeats itself in many guises all the time.

    I bought a book about 40 years ago. It was about Nostradamus, and laid bare his “system”. It showed conclusively by a myriad of examples, that somewhere on the globe, world events repeat themselves cyclically, about every 400 years. It was known then to thinkers and polymaths, and he used it, and by putting his prognostications into print, gained a reputation that has lasted until now, and probably will go on for ever.

    I can’t wait that long…as Schnozzola famously said…”I have only 2 changes of underwear”….

  23. Edgar G. Said:

    This is similar to the saying that god favours the big battalions

    Mars & Thor favor the determined.

    ” Nothing new under the Sun” Ecclesiastics I was a vey good student until I was self expelled from Sat. School.

    Note ,in the above illustration of Deborah, she is riding side-saddle.

  24. Edgar G. Said:

    I can’t wait that long…as Schnozzola famously said…”I have only 2 changes of underwear”….

    From the above statement I would assume you are an unmarried man

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