Friday, July 6, 2012

The Unoccupied Territories


by Dror Eydar

The biggest news story of the week, perhaps of the year, slipped under the media radar yesterday: Edna Adato of Israel Hayom revealed the main points of a report drafted by the Committee to Examine the State of Construction in Judea and Samaria, headed by retired Supreme Court Justice Edmond Levi. The report touches upon the heart of the Israeli-Palestinian conflict and makes sense of the matter. One can say that the government received permission to toss attorney Talia Sasson's report on settlement outposts into the dustbin of history.

Levi’s report concludes that Israel has the right to settle Jews in Judea and Samaria, and that it is incorrect to say that building settlements is illegal according to international law: "According to international law Israelis have the legal right to settle in all of Judea and Samaria, and at the very least in territories under Israeli control based on agreements with the Palestinian Authority; and therefore the creation of settlements in and of itself is not an illegal act."

The committee also concludes: "From the viewpoint of international law, statutes regarding the 'occupation' are inapplicable due to the special legal and historical circumstances regarding the decades-long Israeli presence in Judea and Samaria."

Since the 1970s, senior jurists in Israel and abroad have argued that Israel is completely within its rights to settle its citizens in Judea and Samaria. Among them are the President of the International Court of Justice in The Hague, Judge Stephen Schwebel; Prof. Elihu Lauterpacht of Cambridge University; and Prof. Eugene Rostow, the former Deacon at Yale's school of law, all of whom, along with others, have voiced their clear opinions in regards to Israel's just claim over Judea and Samaria within the historical and legal circumstances.

Since the Six-Day War, however, Israel has refrained from declaring the permanent status of the territories it won, excluding Jerusalem and the Golan Heights.

Into this vacuum Chief Justice Aharon Barak and others inserted the legal paradigm of "Belligerent Occupation," according to which military governance draws its authority from the rules of international law in territories that were won in war. The significance is that Israel is deemed, allegedly, to be a foreign occupier, and it doesn't have the right to apply its sovereignty over, or to move its civilian population into, those territories.

Some of the measures which hostile legal bodies have taken against the settlement enterprise in Judea and Samaria stemmed from this perception. These measures, which aimed at strangling the settlement enterprise, received justification from the State Prosecutor's Office due to its adoption of the Belligerent Occupation paradigm, despite the current government's many objections.

If the territories aren't occupied, the Left has argued over the years, they must be annexed, including the populations there. But the reality isn't a polar one, it is complex. The current report recognizes an intermediate reality: At hand is a disputed territory; two entities hold it; none of the sides is considered an "occupier." There is disagreement regarding ownership, which needs to be clarified through different means, but there is no definition of "occupation" in the international legal sense of the word.

A perception of Belligerent Occupation occurs when one country conquers the territories of another country. In our case, the last sovereign power was the British Mandate, which received its legitimacy from the League of Nations to create a national home for the Jews in the Land of Israel.

The Jordanian occupation was never recognized (aside from Britain and Pakistan), and Israel never conquered "Jordanian territory." Moreover, Jordan renounced its sovereignty over these territories toward the late 1980s.

Another dramatic point in the report is its stance on communities which were built without a government decision ("Unauthorized"). The report concludes that because their creation and development occurred with the knowledge, encouragement and agreement of the most senior government echelons, "this conduct must be considered to be 'authorization.'"

Therefore, "the act of eviction from these communities is impractical and a different solution must be found, such as compensation or alternative land offers. For this reason the committee has suggested to the state that it refrain from carrying out demolition orders in these communities, which it is in essence responsible for creating."

If the government adopts the report's conclusions, it means that the folks working with Mike Blass over at the State Prosecutor's Office will no longer be able to deny, in the state's name, the existence of these communities and won't be able to advance their destruction through dry legal claims.

The government has taken a great step in the right direction on this matter, much to the chagrin of the enemies of the settlement enterprise, and to the joy of its supporters, comprising most of the Jewish population in Israel.

Now a world war will ensue against the report and against Levi.

All the old arguments and slandering tactics will be dusted off and put to use; left-wing organizations will enlist the help of their friends from across the globe, and the alienated juridical elite will fight against the most natural thing to us as a people: the return to our homeland, the cradle of our nationhood.

There is no need to become over-excited; this is exactly what this government was elected for. It is the will of most of the people, and it is also a historical decree.

Dror Eydar

Source: http://www.israelhayom.com/site/newsletter_opinion.php?id=2185

Copyright - Original materials copyright (c) by the authors.

1 comment:

salubrius said...

Eydar is not correct when he says that "... the last sovereign power was the British Mandate, which received its legitimacy from the League of Nations to create a national home for the Jews in the Land of Israel."
A careful reading of the facts shows that the British Mandate for Palestine was in fact a trust, in which the British held the exclusive rights to Palestine in trust for World Jewry. It was a trust in which the sovereignty over Palestine that was not to vest until the Jews had attained a population majority in Palestine so that sovereignty would not be held by a population minority. But the trustee abandoned its trust in 1948 because of the trouble and expense associated with its maintenance. It seems therefore only sensible that the trust res should go to the beneficiary of the trust. While the language of the trust is not clear, it can be clarified, under law by a showing of its purpose and that is clear. In any event the Jewish population majority was established in 1950 after some 700,000 Arabs left Palestine, most of whom never saw a Jewish soldier before leaving. At about the same time some 800,000 Sephardic Jews arrived in Palestine after having been driven out of countries in the Middle East where they and their ancestors had lived for many centuries. At the same time, many Jews who survived the Holocaust arrived in Palestine to leave Europe behind them.

This history is reported in  http://www.israelnationalnews.com/Articles/Article.aspx/11408 
 http://www.israelnationalnews.com/Articles/Article.aspx/11412
and Debunking the Palestine Lie"  http://www.youtube.com/watch?v=O7ByJb7QQ9U See also, Salomon Benzimra, The Jewish Peoples Rights to the Land of Israel published in kindle by Amazon last November, and a much longer treatment by Howard Grief in Legal Foundations and Boundaries of Israel under International Law. In fact in each of five views, Jewish sovereignty over Palestine West of the Jordan River can be established.
1. Under International Law, by the grant at San Remo
2. Under Internationall Law as shown by the opinions of Julius Stone and Stephen Schwebel, by Jordan's acquisition of the West Bank (and the Egyptian acquisition of Gaza) in aggressive wars, and their liberation by Israel in a defensive war.
3. Under the domestic or "treaty law" of the US and the UK pursuant to the Anglo American Convention of 1924.
4. Under the way sovereignty was historically established, that is by an assertion of independence and holding the ground against all aggressors, establishing unity of control and a stable government.
5. Under canon law, as provided by the grant from G-d in the old Testament.

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