Israel must end the “occupation” by act of Knesset

A Legal Discourse on Occupation

by Howard Grief (Canadian Lawyer who made aliya many years ago.)

It was a nerve-racking experience to attend an international conference of distinguished jurists on “Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context”, held on June 5-7, 2007 in Jerusalem and Tel-Aviv. This event was sponsored by three organizations promoting international humanitarian law, human rights and Israeli-Arab co-existence: The Minerva Center for Human Rights, based at the Hebrew University of Jerusalem, the International Committee of the Red Cross and the Konrad Adenauer Foundation. All the speakers and panelists referred repeatedly to Israel’s “occupation” of “Palestinian territory”, and alleged that the “West Bank” and Gaza are “occupied territories” under international law and that Israel’s legal status in those territories is that of an “Occupying Power”.

No dissenting voices were heard, though one jurist, Prof. Yaffa Zilbershatz of Bar-Ilan University did say that the “occupation” was legally established within the framework of international law. I came to the conference as an observer to witness in person the folly and self-flagellation of Israel’s legal elite who give vent to the most anti-Zionist and pro-Arab contentions in scholarly fashion. It was disgraceful to hear speaker after speaker holding the same unshakable assumption, that Israel is in serious breach of the laws of belligerent occupation, as laid down in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, particularly as regards the establishment of “illegal” settlements in the “occupied territories” and its unmet obligations as an “Occupying Power” towards the Arabs.

The only conclusion that can be drawn from this Conference is that the Law Faculties of Israeli Universities are filled with professors and legal scholars who advocate the Arab case concerning the “occupation”, and who have indoctrinated their impressionable students with the same injurious views. By railing against the “occupation”, the legal scholars who populate the law faculties libel and berate their own country and encourage foreign scholars to join in the castigation of Israel for perpetuating the “occupation”. Not least of all, they give aid and comfort to Israel’s enemies.

It is becoming more and more difficult to refute the falsehood of “occupation”, because this unfounded accusation has been given credence by no less an august institution than the Supreme Court of Israel. Beginning principally with the 1979 Eilon Moreh case and extending to recent cases involving the erection of the security fence and the Disengagement Implementation Law, the Court has affirmed that Israel is indeed an Occupying Power in Judea, Samaria and Gaza and governs these territories by virtue of the rules of belligerent occupation, exactly as Arab leaders have maintained. To overturn this libelous falsehood, it would require a special law to be passed by the Knesset, a law affirming Jewish legal rights to all parts of the Land of Israel, especially the so-called areas under “occupation”. Such a law must state specifically that Israel does not occupy – in the legal sense – any area of the Land of Israel.

The idea that Judea, Samaria and Gaza are under Israel’s “occupation” was born on June 6-7, 1967, when the Israel Defense Forces overran and repossessed these territories in the Six-Day War and the National Unity Government headed by Levi Eshkol instantly applied Article 43 of the Hague Regulations to keep the existing laws in force. The invoking of this article of international law by the Government was based on the legal advice of then Military Advocate General and future Supreme Court President Meir Shamgar, as well as several others who concurred in that decision.

However, this step was in direct contradiction to the existing Israeli constitutional law embodied in the law known as the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State Council on September 16, 1948, and two proclamations that were issued by Prime Minister and Defense Minister David Ben-Gurion just prior to the enactment of this law. These two proclamations – the Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation of September 2, 1948 – required the application of the law of the State to areas of the Land of Israel re-conquered by the IDF outside of the recommended UN partition borders of November 29, 1947. Both the law and the two Proclamations were made retroactive to May 15, 1948, thus creating one legal aggregate upon which to base future annexations of re-conquered territory that was part of the Land of Israel.

In contrast to the practice followed by Ben-Gurion’s Government in 1948, the Eshkol government in 1967 applied not only the Hague Regulations relating to “occupied territories”, but also the provisions of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. This gave birth to the assumption in the eyes of the world and in Israel itself that the liberated territories of the Land of Israel and the Jewish National Home were indeed “occupied territories”. Israel chose to apply the Fourth Geneva Convention voluntarily and not to annex the liberated territories (except for eastern Jerusalem and the Golan Heights) out of demographic concerns and to keep alive the hope of signing peace treaties with the neighboring Arab states. But this provided no justification for the violation of the existing constitutional law or for failing to apply the law of the State to the liberated territories as Ben-Gurion did in 1948.

The term “occupation” is defined in article 42 of the Hague Regulations, where it states that “territory is considered occupied when it is actually placed under the authority of the hostile army and the occupation extends only to the territory where such authority has been established and can be exercised”. The premise of Article 42 is that the territory in question belongs to the Occupied Hostile State which lost this territory in a war with the Occupying State. Since Jordan was never the legitimate sovereign of Judea and Samaria – its occupation of this territory during the 1948-1949 Israeli War of Liberation has always been unacceptable under international law – there never was any “occupation” of Jordanian territory.

For the same reason, under neither the Hague Rules nor the Fourth Geneva Convention was there any “occupation” of the Gaza Strip, since Egypt was never the sovereign of that territory and, in fact, never claimed to be. Furthermore, the term “occupied Palestinian territory” is a non-sequitur, since with the termination of the Mandate for Palestine there is no state called “Palestine” from which any land was taken in war, and the laws of belligerent occupation apply only to independent states and not to non-state entities such as the “Palestinian Authority” and the so-called “Palestinian People”. In truth, the areas of Mandated Palestine that are said to be under Israel’s occupation are actually integral parts of the Jewish National Home and belong to the Jewish People under both Israeli constitutional law and international law as decided in the post-World War One global settlement and the carving-up of the Ottoman Turkish Empire.

The Jewish National Home is not merely a meaningless phrase or slogan. It was and still is a concept of international law that was accepted by the 52 member states of the League of Nations which confirmed the Mandate for Palestine on July 24, 1922. In addition, the United States approved the boundaries of the Jewish National Home, including Judea, Samaria and Gaza, when it signed a treaty with Great Britain respecting the Mandate on December 3, 1924; this treaty was then proclaimed by President Calvin Coolidge on December 5, 1925 as part of the law of the United States. The boundaries of Mandated Palestine were those previously set down in the Franco-British Boundary Convention of December 23, 1920 and embraced all the so-called “occupied territories” of today.

The first and most important speaker at the Conference was Prof. Yoram Dinstein of Tel-Aviv University. In his opinion, as stated personally to the present writer, the Arabs of Palestine inherited the rights of the ousted sovereign Jordan, which transferred those rights to the “Palestinians” as a result of King Hussein’s Declaration of July 31, 1988 dissolving Jordan’s legal and administrative links with the West Bank. Dinstein’s opinion is untenable since, as already noted, Jordan was never the recognized or legitimate holder of sovereignty over what it called its “West Bank”. It acquired this territory in May 1948 through an unprovoked act of aggression against the nascent Jewish State; it had no right to this territory and then illegally annexed it two years later. Only two countries recognized this illegal annexation, Pakistan and Great Britain, though the latter did not recognize the Jordanian appropriation of the eastern part of Jerusalem. Not even the Arab League of states recognized the Jordanian annexation of the conquered areas of Mandated Palestine.

There remains only one way to end the myth of Israeli “occupation” of lands that belong by law to the Jewish People. A future Government of Israel must abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza, and replace the existing military laws and regulations with the law of the State of Israel.

August 10, 2007 | 6 Comments »

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  1. Salomon,

    Until the major Jewish organizations and pro-Israel advocacy groups get on board with the views of Grief and his cohort of scholars and historians and with Feiglin, Eldad and their political cohorts, a big splash full page ad in the NYT will hardly make a ripple.

    Until Israelis themselves begin to take these aforementioned scholars and politicians seriously and begin to shape their thinking accordingly, there is little chance the major Jewish organizations and pro-Israel advocacy groups will support any pro-Israel and peace message that is in conflict with the GOI as regards the GOI’s thinking and policies it implements to pursue peace with the Arabs/Palestinians.

  2. Howard Grief has been raising these issues for years. Now, more than ever, these issues need to be brought to the mainstream media. Only a big “splash” (full page in the New York Times, for instance) will have any chance to activate public opinion.

  3. I’m afraid Bill Narvey is right. The push for the elimination of the stigma of occupation has to come from the west. It should be expunged from political discourse in America by the force of our political connections and those of our allies on the Christian right. A resolution of the US Congress that Judea, Samaria and Gaza are part of the ancestral Land of Israel and belong to the partrimony of the Jews would be a good start. Where is AIPAC when we need them?

  4. In order to bring these issues of which Grief speaks before the Knesset, he will necessarily have to have successfully politicked his views so that there is a groundswell of support that can force the government to deal with these issues.

    Frankly I do not think this change of thinking should come before the Knesset. There would be far too much opportunity to talk the issues to death.

    There would alos be the advantage of time for America, the EU and the Muslim world to take stands and pressure Israel to abandon such thinking lest it interfere with the grand scheme of getting Israel to concede more pieces of herself. For the West this road map if followed to its end, will leave Israel weak enough that the Arabs would be satisfied that they got what they wanted and Israel as weak as she became could not possibly pose a threat to them. That in a nutshell is how the West sees peace emerging.

    For the Arabs and Palestinians however, such end result plays into their long range plans to eliminate Israel. Achieving the peace the West is forcing Israel towards, would be a critical stage from which the Arabs could launch their final genocidal assault.

    It is one thing for the West to delude themselves that the Arabs have given up their long range plans. They can afford to think that way. Israel cannot afford to be so delusional, but the maddening truth is that successive Israeli governments including the present one are just that delusional.

  5. Jews can have equal rights in Saudi Arabia and other Muslim countries if they convert. Perhaps that option should be given to Israeli Arabs as well. This will be proof that Israelis are not prejudiced against Arabs but they only want to maintain a Jewish state.

  6. “Judea, Samaria and Gaza are not ‘occupied territories’ according to international law due to the fact that they were not taken from any foreign sovereign,” says Law Professor Talia Einhorn, a senior member of the research faculty at Tel Aviv University and a Law professor at the Shaarei Mishpat College in Hod HaSharon.
    Einhorn delivered her statements at a session entitled “U.S.-Israel Relations” at the Jerusalem Conference which concluded Wednesday. She declared: “It is important to remember and mention daily what Israel has already said for years, not only the government, but judicial experts – that Yesha [Judea, Samaria and Gaza], according to international law is not occupied territory.” Einhorn explained that when Israel won the Six-Day War, no foreign country had recognized sovereignty over the land that was liberated. Egypt claimed no sovereignty over Gaza, and when Jordan tried to assert sovereignty over Judea and Samaria in 1950, the only countries to recognize it were England and Pakistan – with England limiting its recognition to eastern Jerusalem, but not the expanses of land extending north and south of it.
    “Their biggest opponents were in fact the Arab countries,” said Einhorn. She went on to say that the 1967 demarcation lines are in fact, according to international agreements, simply cease-fire lines that should never be considered political demarcations or national borders.
    In the Encyclopedia of International Law, it is written that Israel was established without international borders. Israel’s only internationally recognized borders are with Jordan and Egypt, as a result of the peace agreements that were signed.
    Calling Israel ‘Colonialist’ with the intention of deligitimization is very severe, Einhorn said, especially considering how specious the argument is. “The Land of Israel is our land. No other nation ever made Israel into its country.” Arutz Sheva News Service. Mar. 18, 2004

    What is the Basis for the Legal Status of Israel and the Settlements? Professor Eliav Shochetman, Hebrew University, Jerusalem
    From Makor Rishon, 27th August, 1999
    Israel Recource Review. AUGUST 30, 2001
    UN Resolution 242 Does Not Require a Return to the 1967 Borders The media often refers to settlements and the presence of the IDF in the West Bank and Gaza as “illegal under international law.” This is the Palestinian viewpoint, which is derived from their citation of UN Resolution 242, which states “the withdrawal of Israel’s forces from territories occupied in the recent conflict [1967].” The authors of this resolution have stated publicly and repeatedly that they omitted the words “all territories occupied” and FURTHER, they added phraseology which called for “an accepted settlement” between the parties because “all States have the right to live within secure and recognized boundaries.”

    It is evident both from the paper reprinted today and UN Resolution 242 that Israel does INDEED have every right to sovereignty and settlement in the West Bank and/or Gaza.

    The Geneva Convention Does Not Void the Mandate
    This position, which views the right of Jewish settlement in Judea, Samaria and Gaza as anchored in the rules of international law, is supported by a once-highly placed figure in the American administration, one of the drafters of the celebrated UN Resolution 242, a Deputy Secretary of State and professor of international law, Eugene Rostow. He wrote, The primary objective of the Palestine Mandate was different [from the mandate over Arab countries] . . . The Allies established the Palestine Mandate in order to support the national liberation of ‘the Jewish people’ because of ‘their historic connection to the land.’ The mandate encouraged the Jews to found a national home in Palestine, and gave them the right to establish a “National Home” in Palestine and granted them the right to make close settlements without prejudice to ‘the civil rights and religious rights of the existing non-Jewish communities in Palestine.’ The term ‘civil rights’ in this sentence is carefully distinguished from ‘political rights.’

    The right of the Jewish people to settle in Palestine has never been terminated for the West Bank . . . The only way which the mandate right of settlement in the West Bank can be brought to an end is through the annexation of the area by an existing state or by the creation of a new one.” Rostow stresses that the right that arose by virtue of the Mandate is perpetual, as long as the territory of the Mandate is not turned into an independent state or does not become part of an existing one.
    Therefore, from the point of view of international law, the recognized right of the Jewish people over all areas of western Eretz Israel is completely valid, including the right to settle throughout the territory.
    Rostow also rejects the claim that the act of settlement violates article (49)6 of the Fourth Geneva Convention of 1949, which forbids an occupying power from deporting or transferring parts of its own civilian population into the territory it occupies. Professor Rostow writes that the settlers of Judea, Samaria and Gaza were not transferred to live there as a result of deportation or “transfer.” “The Jewish settlers in the West Bank are most emphatically volunteers,” he writes. “They have not been “deported” or “transferred” to the area by the Government of Israel and their movement involves none of the atrocious purposes or harmful effects on the existing population that is the goal of the Geneva Convention to prevent [deportations for the purpose of extermination, slave labor, etc.].” (This article was written to ENSURE that another Holocaust is prevented. ~Shosh)

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