By Ted Belman
I recently asked, Does Israel occupy Gaza as a matter of law. I did so to bring to your attention a current lawsuit or petition which had to deal with the question.
One of the comments took me to task for not expounding on the question of “occupation” more fully. In addition I received an email from Elon Magill, Founder, Israel White Paper– Upholding Israel’s Legal Foundations [Yesha]. Do visit the site.
In the discussion I asked what arguments are there that negate the Israel High Court decision on the fence, which was based on the law of “belligerent occupation”. He brought to my attention the following,
The Law vs Aharon Barak by Howard Grief and others,
Outline of A Legal Strategy Against Disengagement by Yisrael Medad of My Right Word
Constitution of the Jewish Agency for Palestine
The Irrelevancy Of ‘Belligerent Occupation’ and the 4th Geneva Convention
by Yoram Shifftan
In “The Origin of the Occupation Myth.” , Howard Grief stated:
The tremendous legal and political harm which these jurists (in the fence decision) have caused to the Jewish legal case cannot be rectified or reversed in a single stroke. However, a beginning can certainly be made to overcome this damage by having the Knesset pass a special law declaring that Judea, Samaria and Gaza are definitely not occupied territories, but rather the patrimony of the Jewish People.
It may be that the fence decision is not the last word on the subject. Israel always took the position that the Geneva Accords did not apply to J&S but gratuitously applied the humanitarian provisions thereof in any event. It may be that they only conceded “belligerent occupation” for purposes of enabling the High Court to decide the fence matter based on the humanitarian provisions of the Geneva Accords.
Elon Magil ends his email to me,
In a passionate article after the Israeli Supreme Courts ruling on the fence, Att’y Howard Grief stated,
“His [Justice Barak’s] judgment does not uphold the Rule of Law, as he so piously claims, but actually negates it”
Therefore, I ask to all: If the Israeli government and courts are not upholding the rule of law, and the Knesset is unwilling to step in and has in fact been an enabler of law-breaking, what recourse do we have left in the one and only Jewish State?!
Thus, we need to take the legal and political struggle to a more favorable venue, the United States of America. Some of you might not be aware, but the U.S. is an official party to the Mandate for Palestine. Its courts have never ruled that Judea and Gaza are “occupied.”
The United States has a constitution that is the supreme law of the land, institutional checks and balances, a Congress that is responsive to the people, a President who is sworn to uphold the laws of the land. Its people share common values with the Jewish people and are generally sympathetic to Israel causes (although they have lately been confused by Israel’s actions since they have always reflexively supported whatever Israel does).
Therefore, all Jewish organizations who have maintained true to the integrity of the Land of Israel throughout these trying times must seek recourse in possibly the last venue left to us, the United States of America.
Assuming for the moment that Israel is an occupier according to the Geneva Convention then it is fair to point out that this includes all land between the fence and the green line in addition to Jerusalem and the Golan. So it might be fairly asked, what right does Israel have to any of these lands? Let’s go further and include the lands between the green line and the Partition Line. Why not?
On the other hand, Res 242 allows Israel to remain in occupation until secure borders have been agreed upon. This resolution, while saying that territory can’t be acquired by force also does not require Israel to withdraw from all territories.
“International law” is a misnomer. It has been said, it is neither “international” nor “law”. But it is used as a club to beat up on Israel. Those wielding this club don’t observe it nor do they enforce it elsewhere.
Now what does this discussion have to say about Kosovo? Kosovo belongs to Serbia and everyone agrees. Yet the UN attacked Serbia and now wants to create an independent Kosovo. What right did they have to attack? What right do they have to create Kosovo. According to Res 242. the UN holds that the acquisition of territory by force is inadmissible. Thus how do they justify taking Kosovo from Serbia?
Thus I would argue that the law of occupation is not the last word. A negotiated settlement is required.
But the parties will never compromise enough to reach an agreement. Then what? The “occupation” continues as a new reality develops. Jews are increasing in number in J&S and Arabs are decreasing in number.
The Quartet may try to impose a solution (The Saudi Plan) and Israel will have to deal with that when the time comes. Meanwhile war clouds are gathering.