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Preserving a legal inheritance: settlement rights in the "Occupied Palestinian Territories"

19 October 09

The fuller version of the article in the September 2009 Journal in response to Fraser Ritchie’s article of June 2009

by Gerald M Adler

Contents

1. Introduction
2. The land at Jayyous and its surroundings
3. Legal issues
a. Applying international law in the OPT
b. Substantive land law in the OPT
c. The Fence and the Green Line.
(i) Legal significance of the Green Line
(ii) Legal, political and security consequences
d. The legality of the Fence and restrictions on entry into the Seam Zone
e. Israeli civilian right of presence and settlement in the West Bank
(i) League of Nations Covenant 1920
(ii) San Remo Resolutions 1920
(iii) Treaty of Sèvres, 1920
(iv) Palestine Mandate, 1922
(v) UN Charter article 80
(vi) UN General Assembly Resolution 181
(vii) Israeli-Jordanian Armistice Agreement, April 1949

1. Introduction

Fraser Ritchie’s article “Unequal before the law” (Journal, June 2009, 22; for fuller version click here) purports to describe an adverse humanitarian situation prevailing in and around the Arab village of Jayyous, located in “Israeli occupied Palestinian Territory” on the West Bank (OPT) and situated close to the Jewish settlement of Zufin. He raises three separate legal issues from which he draws certain conclusions. However, when subjected to rigorous examination, these conclusions prove to be unsubstantiated or misinterpreted, resulting from errors and omissions of fact and law.

In setting the background to his investigations, Mr Ritchie states of his visit to Jayyous: “I was surprised by the degree of disregard for international law, humanitarian law, human rights and legal rights. Having experienced practice in Scotland in conveyancing and court, it seemed of interest (i) how land could be 'confiscated' by a state, and (ii) how a state could so ignore due process”.

Without giving his readers a clear description of the legal and factual context, Mr Ritchie concludes that:

(a) Israel manipulates and exploits the land legislation applicable in the OPT so as to bring under Israeli state control large tracts of undeveloped or uncultivated land. This operates to the detriment of the Palestinians, who, in his opinion, are entitled to have free and untrammelled access to such lands and to develop them;

(b) Once such land is repossessed by the state, it is used to (i) establish Israeli settlements; and (ii) accommodate the terrorist security barrier (the "Fence").

The reality is that while the injury and inconvenience caused to the Palestinians by Israel is to be regretted, their situation is much less severe than that which Mr Ritchie portrays.

Mr Ritchie's article omits to make even a single reference to the role and earlier judgments of the Israeli Supreme Court. Since 1967, it has opened its doors to receive petitions for redress submitted by Palestinians alleging personal injury and harm or damage to their property within the OPT, caused by arbitrary or illegal acts purportedly committed by the Israel Defence Forces ("IDF") or by other Israeli nationals acting in their official capacity. Many of these claims have been resolved in the Palestinians’ favour.

Further, in discussing the Fence, its construction, location and gates, and the damage and inconvenience caused to Palestinians by its presence, Mr Ritchie ignores

  • the context in which Israel gained occupation of the West Bank;
  • the reasons for the occupation continuing for so long; and
  • the extent of the provocation which gave rise to the construction of the Fence in the first place.

2. The land at Jayyous and its surroundings

Mr Ritchie implies that land “taken from Jayyous” for the establishment of the nearby Jewish settlement of Zufin was improperly leased from the Israeli Custodian of Enemy Property. In fact, a very substantial parcel was acquired directly from its Arab owner in an arm’s length transaction for good consideration in accordance with the very registration process, discussed below, which Mr Ritchie denounces. 

Amongst other facts of which Mr Ritchie is apparently unaware is the climate of intra-Palestinian duress and intimidation which befogs West Bank politics. Sadly, the vendor paid for the “crime” of selling land to a Jew. He was assassinated by fellow Palestinians.

He also omits to mention that in 2005, Jayyous petitioned Israel’s Supreme Court (HCJ 10905/05) for judicial review of the route of the Fence, 96% of which, overall is comprised of electronically wired fence construction and not a wall as is commonly described. Although the final decision is still pending, the Israel Defence Forces (“IDF”) have already conceded that the “warning distance” between the Fence and the nearest Jewish settlements could be reduced, thus returning some 500 acres of privately owned and 90 acres of “state” land to the Palestinian side.

The article states: “The Israeli separation barrier has isolated 78% on the west side within a distance of up to 6.5km from the 1949 internationally recognised armistice line known as the Green Line”.

The reality is different:

  • In its present location, the percentage of land isolated from the village is approximately 60%. If the court accepts the IDF concession, this will fall to about 40%;
  • The extent of the Fence’s penetration from the Green Line in the Jayyous area ranges from hundreds of metres’ distance to 3 km at most and not 6.5 km.

Mr Ritchie further states: “[i] In Jayyous there is land that still belongs to Jayyous farmers but which they can only access through a gate in the barrier, opened and shut by soldiers at specified times. [ii] The farmer must show a permit. [iii] Only 18% of people with land have permits. [iv] If the land is not farmed, due to absence of permit for whatever reason, it will be taken as state land under [Israel’s] interpretation of the Ottoman law.”

Three of these statements – i, iii and iv – are inaccurate both in fact and law.

(i) There are three gates and not just one. Two are open for three periods each day; the third remains open throughout daylight hours.

(ii) The Israeli Civil Administration issues an entry permit to all inhabitants possessing a sufficient interest in land within the restricted area. The probability is that only 18% of the population of Jayyous has land such as to justify a genuine need to gain entry.

(iii) As will be demonstrated immediately below, under Israel’s application of the Ottoman law, rather than in its interpretation, land classed as Miri (see below ) is not automatically "taken as state land" if it remains uncultivated.

Further, international law recognises the right of an occupying power to restrict freedom of movement and declare certain areas restricted, where necessary for orderly government and for the security of the occupying power.

3. Legal issues

Israel’s presence on the West Bank dates from the 1967 Six Day War. Taking the strategic pre-emptive defensive action consistent with UN Charter article 51, Israel repelled a planned armed attack by the united forces of Egypt, Syria and Jordan. Neither conventional nor customary international law requires Israel to withdraw from territory captured in a self-defence war until she and her opponents conclude a peace treaty. Although Israel’s relations with the Palestinians are temporarily governed to a considerable extent by the Agreement on Interim Self Government, 1995 ("Oslo II"), no final peace treaty has been concluded in respect of the OPT.

a. Applying international law in the OPT

In governing the OPT since 1967, Israel complies with international law. This demands that the occupying power:

  • continue to apply “the laws in force within the territory immediately prior to the occupation” (article 43, Hague Regulations (“Hague”), and article 6(2) of the Fourth Geneva Convention (“Geneva IV”)); and
  • “safeguard the capital of [state] properties, and administer them in accordance with the rules of usufruct” (Hague, article 55).

The British Mandatory Government introduced the statutory process of taking possession of immovable Ottoman state property by military order and transferring its management to the Custodian of Absentee and Enemy Property (the “Custodian”) in 1919. Jordan did likewise in 1948. The Israeli military commander, following the same procedure in 1967, imposed a duty on the Custodian to manage OPT state lands in accordance with the pre-existing land law.

In respect of private property, Israel adheres to Hague, article 52 and Geneva IV, article 53, which prohibit an occupying power from destroying or confiscating private property, except where such destruction is rendered necessary by military operations. Where there is a military need for the use of private property, the land is not confiscated – title thereto is not forfeited – but it may be requisitioned from the owner, who is entitled to receive compensation for its occupation and use. Such is the situation where Israel has erected parts of the Fence on private land.

b. Substantive land law in the OPT

Mr Ritchie alleges that “Israel says non-registered land in the OPT is public land”. Israel makes no such claim! The reverse is the case. 

Mr Ritchie fails to differentiate non-registration of title to land from an individual’s ability to (a) acquire the right to cultivate Miri-type land (see below) by adverse possession; and also (b) bear the risk of loss of such right by failing to cultivate it according to law.

The substantive land laws applying in the West Bank are based principally on the 1858 Ottoman Land Code, amended by the British Mandate and Jordanian Governments under their respective jurisdictions. They have remained essentially unaltered under Israeli rule. Taken together, these laws regulate the acquisition, utilisation, disposition and registration of all types of landholding, including state owned land.

Ottoman land law recognises six classes of landholding, expressed in terms of its location, quality and potential use. In and around Jayyous, the land falls unevenly into four of these classes, the second of which is the most prevalent, and the most relevant for Mr Ritchie in his criticism of Israeli conduct:

(i) land used for public or general use of the inhabitants of a village, denominated as Metrukeh;

(ii) land located outside an urban area capable of cultivation - classified as Miri;

(iii) stony and broken land - being neither under cultivation nor capable of it - termed Mewat; and

(iv) land which has been abandoned and uncultivated for more than three years - termed Mahul or Waste land.

The state maintains a continuing legal interest in the last three types.

In respect of Miri, the law provides that the bare title (“rakva”) to such lands vests in the state (now represented by the IDF commander), from whom an individual can acquire rights of use (“te’tsaruf”) either by express grant from the state or by 10 years’ uninterrupted adverse possession.

Land registration during the Ottoman period provided only for registration of transactions in land, which were personal in nature and no guarantee of good title. The records were used to identify potential conscripts for compulsory military service and liability to contribute to and strengthen the government tax base. For the Ottoman administration, both the identity of the occupant and the intention that vacant or uncultivated land be brought into productive use had greater importance than an exact delineation of the land being transferred and the validity of its title.

The Ottoman law, which the British mandatory authority adopted, therefore encouraged the state to recover Miri land uncultivated without reasonable justification for three consecutive years and to resell it by public auction, again subject to the obligation to occupy and cultivate it.

For the British administration, close settlement on vacant or waste land and increasing the level of efficiency in utilisation of land then under cultivation took precedence. Only in urbanising areas did land title registration begin to be introduced. Comprehensive title registration based on land “settlement” did not exist outside the built-up areas. The settlement process was both extensive and expensive. It included cadastral surveying, measurement, initial boundary setting, public notification, quasi-judicial hearing, determination of objections and finally registration.

For the legal development of land to attract investment capital, title thereto has to be secure. To stimulate such investment, Jordan introduced the First Registration of Land Law, 1965. Despite this innovation, when Israel took control in 1967 only one third of the non-urban land in the West Bank had been “settled”, a situation which retarded its development.

It is at this juncture that Mr Ritchie misinterprets the purpose and application of the law as favouring the Israeli occupying administration.

An applicant for “first registration” must first provide proof of title! In the case of Miri land, a claimant by adverse possession must demonstrate that he or his immediate ancestors both occupied and cultivated the land continuously for a 10 year period without objection. If, however, Miri land ceases to be cultivated for three years, by law such land technically becomes vacant (mahlul) or waste land and reverts to the state.

After 1967, in order to determine which lands were Government owned in a practical and evidentiary manner, the IDF military commander exercised his authority to declare apparently abandoned or uncultivated land as reverting to the state. Subsequent to making such declaration, notice thereof is served on the leaders of the relevant village and is published in the civilian co-ordination and communication centres, giving a 45 day period within which opposition and objection may be submitted. After the expiration of this period, appeals may still be submitted if a delay can be justified.

Miri land is only declared to be state land after a very thorough examination of its uncultivated condition and confirmation that it has not been worked for a period even as long as 10 years, as against the strict legal requirement of three years.

Even if the land has not undergone first registration, a claimant may still possess a right of occupation, but, after having successfully completed the process, the weight of proof in support of his right is much greater. It was by undergoing this process that the Palestinian landowner was enabled to sell his land to the Jewish development company which built the settlement of Zufin.

Despite the hearsay anecdotal evidence in the book Palestinian Walks, on which Mr Ritchie relies, vacant and uncultivated Miri land in the OPT is neither declared as “state” land nor is it allocated to private developers or individuals, before a full investigation has been conducted.

Mr Ritchie fails to disclose that Israeli policy is flexible in the exercise of state rights to reclaim Miri land.

Neither the IDF nor Custodian implement the state’s right to recover uncultivated land strictly in accordance with the law; nor is it employed automatically against the Arab cultivators. IDF policy is flexible. Until either the state or the occupier/cultivator initiates some concrete intention to develop, Palestinian occupiers are permitted to resume cultivation – even after ceasing to do so for a number of years well in excess of the three year limitation period.

Although Israel has placed the burden of proof on the cultivator to show continuous use of state land that has been or is, in good faith, about to be certified by the Custodian as unoccupied or unworked, the cultivator can still pre-empt such a state declaration by initiating a “first registration” procedure. Alternatively, he can discharge the burden of proof imposed on him relatively easily by witness testimony and the very aerial surveys, described immediately following, which Mr Ritchie condemns.

Mr Ritchie alleges that “proof of non-cultivation was by aerial photographs when there were no crops in the ground”. Factually, he is wrong!

The photographs are based on the results of a longitudinal aerial survey initiated and undertaken in 1945 by the Palestine Mandatory Administration as the foundation for a study directed towards increasing the efficient utilisation of land under its jurisdiction. During the 19 years of Jordanian occupation, its Land Administration failed to update the survey and its utilisation was allowed to lapse. Only after the Six Day War did Israel resume the survey on a regular basis for its initial purpose – and it is updated regularly. The use of photos extracted from the survey to prove or dispute occupation and cultivation was neither initiated by Israel nor undertaken for the objective that Mr Ritchie claims.

Unworked Miri land does not automatically revert to the Jewish people.

In the event any particular parcel or tract of Miri is declared as being unoccupied or unworked, Mr Ritchie states, incorrectly, that it “‘reverts’ to those whom the Israeli state regards as rightful owners, the Jewish people, wherever they may be. Legally this is not sustainable”.

This conclusion is also wrong in law. The right of utilisation of any particular parcel of Miri land that remains undeveloped will not necessarily revert to the “Jewish people”, but to the state, be it Palestinian or Israeli, which ultimately gains jurisdiction in Final Status negotiations.

c. The Fence and the Green Line

i. Legal significance of the Green Line

Mr Ritchie rejects out of hand Israel’s claim that the Fence is required to provide security for its citizens. He states: “[Israel] could have legally constructed the barrier along the Green Line, but that would have defined the Israeli boundary and excluded the citizens of Zufin from ‘protection’. There are many Israeli settlements in the West Bank and Israel has built, or made plans to build, the barrier round as many as it can.”

The Green Line however does not constitute a generally recognised international boundary or border. The line is a ceasefire line agreed between Jordan and Israel in their 1949 Armistice Agreement:

“Its basic purpose is to delineate the lines beyond which the armed forces of the respective Parties shall not move” (article IV(2)).

The Agreement specifically states in article II(2) that “no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations” (emphasis added).

Only Britain and Pakistan recognised the line as an international boundary when Jordan purported to annex the West Bank in 1950. The Six Day War rendered the question largely moot.

ii. Legal, political and security consequences

From Israel’s perspective, construction of the Fence on the Green Line would have brought about unacceptable legal, political and security consequences:

(1) Legally, construction of the Fence on the Green Line would have been interpreted internationally as a waiver by Israel of the minimal security protection accorded to it under UNSC Resolution 242, passed after the Six Day War.

(2) Politically, location of the Fence on the Green Line would have pre-empted and foreclosed any negotiations with the Palestinians on at least three of the six topics specifically reserved for the Final Status Negotiations contemplated in the 1993 Oslo Accords: settlements, security arrangements and borders.

(3) As for security, the Green Line runs very unevenly through low lying ground. Mountains and hills dominate the valleys. Therefore, to provide the secure boundaries recognised by resolution 242, Israel must control the high ground in order to dominate the area, rather than have others dominate her.

The purpose of the Fence is to deter and delay easy Palestinian terrorist infiltration into Israeli territory and its civilian population centres. The route of the Fence and the nature of its construction are dictated by topography, the absence of natural or manmade obstacles between Israel and the OPT, the warning distance between Israeli and Palestinian population centres and other security considerations.

The location of the Fence on the “Green” ceasefire line would, therefore, have defeated the very security objectives which it is designed to achieve.

The construction of the Fence is not a political statement but a temporary security measure, it being composed mainly of wire, which can be removed with relative ease should circumstances permit. In determining the route of the Fence, a balance has to be struck between Israel’s security and Palestinian humanitarian considerations, taking into account the needs of those most affected by the Fence.

As will be demonstrated below, the decisions of Israel’s Supreme Court ensure that the IDF seeks to find an appropriate balance. The route of the Fence has already been changed in a number of instances in response to Palestinian complaints.

d. The legality of the Fence and restrictions on entry into the Seam Zone

(i) Mr Ritchie’s reliance on the opinion of the International Court of Justice (on the “illegality” of the “Wall”), as having binding effect, is questionable:

  • The opinion rendered was “advisory” and not dispositive;
  • Without giving reasons, the opinion peremptorily declared that Israel could not avail itself of the right of self-defence under UN Charter, article 51 against a non-state actor. However, the language of the article imposes no such limitation. Indeed the inherent customary law of self defence has been legitimately relied upon, even before the creation of the nation state, against marauders, bandits, and other warlike attackers emanating from beyond the territorial boundaries claimed by a nation or people. Since 9/11, the ICJ position has become untenable.
  • The opinion failed to take into account Israel’s security considerations, based on hard evidence and subject to cross-examination. The ICJ virtually concluded that Israel’s action was politically motivated. A detailed examination of the facts would have shown the contrary.
  • The opinion makes no reference to the security provisions of the Israel-PLO Interim Agreement of 1995 (Oslo II).

The legality of the Fence cannot be divorced from the peril and scale of the armed attacks directed indiscriminately at Israel’s civilian population before and after its construction. After the collapse of Final Status negotiations with the PLO in 2000, the Palestinians escalated their campaign of terror both in the OPT and within Israel. By April 2004, more than 780 terrorist attacks had been perpetrated within Israel and more than 8,200 in the OPT, costing 900 Israeli citizens their lives and causing over 6,000 to be severely injured.

Such was the scale of aggression that the situation could legitimately be classified as “armed attack” short of war. In these circumstances, the laws of war and of belligerent occupation expressed in Hague and Geneva IV have again become applicable as they were in 1967:

  • Hague, article 43 requires the occupying power to take all the measures in its power to restore, and ensure, as far as possible, public order and safety.
  • In so doing it may requisition private property for military needs (Hague, articles 46 and 52). Such needs would include the land upon which the Fence is constructed, in return for which the owners are entitled to compensation.
  • If in the process of constructing the Fence it is absolutely necessary to destroy private property, such as by the removal of olive trees, Hague, article 52 and Geneva IV, article 53 permit such action. To minimise damage to local farmers, Israel has replanted over 90,000 trees in the area of the Fence and has tried, wherever possible, to utilise public land, in accordance with Hague, article 55.

(ii) The Fence also constitutes a legitimate measure under the security provisions contained in Oslo II.

(iii) As mentioned earlier, any Israeli or Palestinian is free to petition the Israeli Supreme Court for judicial review of IDF decisions on the line of the Fence, if he alleges this to be unreasonable or unconnected with any security objective. In responding to any order nisi issued against the IDF or the Israel Government, the former will be compelled to lead evidence proving:

  • a rational connection between the route of the Fence and the goal of its construction as being necessarily military in its objectives and not political;
  • the route chosen being the least injurious to the petitioner without sacrificing that defence objective; and
  • the damage caused to the petitioner being proportionate to the anticipated security gain.

All three subtests must be satisfied simultaneously.

Since the commencement of construction of the Fence, over 150 applications have been submitted. Approximately 50% have been withdrawn and 38 remain to be decided. On the other side of the scale, since commencement of its construction in 2003, the Fence has directly reduced the number of successful attacks and consequent fatalities on Israel’s civilian population.

e. Israeli civilian right of presence and settlement in the West Bank

The declared objective of Mr Ritchie’s Quaker sponsor and that of EAPPI, the programme organiser, is to bring about the cessation of Israeli “occupation” in the West Bank. The real issue, which both they and Mr Ritchie avoid, is not opposition to the “occupation”, but Arab-Islamic opposition to any Jewish right of presence in the West Bank.

Israeli settlements in the OPT barely account for more than 2% of the land area captured in 1967. As a result of the IDF troop withdrawal in accordance with Oslo II, Fatah and Hamas – and not Israel – currently exercise personal jurisdiction over approximately 97% of the Arab population, as they do in respect of over 65% of the West Bank territory. In the failed Final Status negotiations of 2000, Israel offered to withdraw from approximately 97% of the OPT, making up the 3% balance in a land exchange.

Apart from Jewish neighbourhoods in East Jerusalem, the relatively small proportion of land in the West Bank utilised by settlers is located mainly on stony hilltops – state owned Mewat land incapable of being cultivated or developed without a large input of investment capital.

Mr Ritchie accepts uncritically the Palestinians’ claim that Israeli settlement activity following the 1967 occupation is contrary to international law and is therefore illegal. The claim is rooted in article 49(6) of Geneva IV: ”The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The objective of paragraph (6) was to prevent a practice adopted by Germany during the Second World War of the involuntary transfer of portions of its own population to occupied territory for political and racial reasons. Legal scholars disagree with the allegation that this provision was ever intended to mean a voluntary, non-coercive movement of a civilian population. The provision therefore does not provide the solid foundation which the Palestinian position claims.

Notwithstanding article 49(6), Israel has an independent legal claim to occupy, and settle in, the West Bank Territory, which can be traced through a number of international legal instruments, the most significant of which are:

(i) League of Nations Covenant 1920 formed part of the peace treaty negotiations following the conclusion of World War I. Article 22 deployed the Roman-Dutch legal concept of “mandate”, similar to the equity concept of a trust. It was anticipated that the mandate for a territory would reflect the stage of the development of the people, its geographical situation, economic conditions and other similar circumstances.

(ii) San Remo Resolutions 1920 continued the peace negotiations in respect of the disposition of the territories formerly held under Ottoman control. Purporting to act in accordance with article 22 of the Covenant, the Principal Allied Powers concluded, inter alia:

  • Syria and Mesopotamia (Iraq) should be provisionally recognised as independent states, subject to the rendering of administrative advice and assistance by a Mandatory Power until such time as they might be able to stand alone; and
  • separately, Palestine was to be entrusted to a Mandatory Power, yet to be selected, that would be “responsible for putting into effect the [Balfour] declaration originally made on November [2] 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people”.

Both Britain and the Allied Powers were cognisant of the fact that the Zionist Jews hoped that the homeland in Palestine would ultimately develop politically as an independent Jewish state. The Arab leadership on the other hand was divided on the matter at best, and opposed to it at worst. Consequently, the language expressed in the Declaration, and included in the Resolution quoted above, continued:

“it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country” (emphasis added).

Significant by its absence is the word “political” from the rights of the communities which were not to be prejudiced by the establishment of the Jewish homeland. Furthermore, these communities were not referred to as Arab but as “non-Jewish” religious (rather than ethnic) communities. This differentiation became even more apparent in the terms of the actual Mandate.

(iii) Treaty of Sèvres, 1920 gave expression to the San Remo Resolutions in the peace agreement concluded between the Allied Powers and the Government of Turkey then in power. Inter alia, it provided for the dissolution of the former Ottoman Empire, with Turkey ceding all rights of sovereignty over North Africa and Arab Asia. (This waiver was subsequently confirmed in the Treaty of Lausanne 1923, which replaced the unratified Treaty of Sèvres.) The Allied Powers’ dissolution and the politically artificial delineation of Middle Eastern territory laid the foundations of the present conflict between Jews and Arabs and between Israel and the Palestinians.

Thus there is a clear link between the act of renunciation of Turkish sovereignty over Palestine and its transfer to Britain – under the Mandate designed for putting into effect the establishment of a Jewish homeland, as expressed in the Balfour Declaration and the San Remo Resolutions.

(iv) Palestine Mandate, 1922 reiterates in its preamble the policy declared in the Balfour Declaration and acknowledges the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home there.

Article 6 of the Mandate imposes a positive obligation on the British Mandatory “to facilitate Jewish immigration under suitable conditions and shall encourage… close settlement by Jews on the land, including State lands and waste lands not required for public purposes”.

The obligation to facilitate Jewish immigration is supported by the provisions of article 7, which impose on the Mandatory a duty to enact a nationality law, “and to include therein provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine”.

The terms “Palestinian” and “Palestine” at this period (1922) were applied solely to Jews and their ancient homeland. Yasser Arafat’s "creation" of a separate "Palestinian" people out of the South Syrians (as they were known under Ottoman rule) did not occur until 1964.

While article 6 implies that Jews were to be allowed to settle anywhere in the mandated territory, article 25 empowered the Mandatory “to withhold the application of… such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions”.

This provision enabled the Mandatory Administration to confine the establishment of the Jewish homeland to territory lying cis-Jordan, while giving Arab-Palestinians and others the right of settlement and land acquisition in trans-Jordan and excluding the Jews therefrom.

That the drafters of the Mandate contemplated the realisation of a Jewish majority in cis-Jordan is supported by the recognition of the Jewish Agency in articles 4 and 11 as an active partner with the Mandatory Government in the stimulating of Jewish immigration and development of Palestine. By contrast, the presence in the mandate instrument of language protective of Arab and other non-Jewish interests appearing in the preamble, article 6, and particularly in article 9, would have been superfluous if the drafters had envisaged an eventual Arab sovereignty over a Jewish minority.

(v) UN Charter Article 80
This article provides in part: “Nothing in this Chapter [dealing with the establishment of Trusteeships and Trustee Agreements] shall be construed in or of itself to alter in any manner the rights whatsoever of… any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”

Mandates approved by the League did not, upon the League’s dissolution, fall automatically within the new Trustee system established under the UN Charter. Until a Trustee agreement concluded in accordance with article 77 replaces it, a Mandate and the rights of the beneficiaries under it remain intact. To the best of the author’s knowledge no such agreement in relation to Palestine was ever prepared in accordance with this Chapter, nor was one even considered. While Britain may have surrendered her obligations as Mandatory-Trustee in 1948, the Mandate itself did not lapse.

The Mandate has never been formally amended or repealed – nor can it be “wound up” so long as the beneficiary and an undistributed part of the corpus of the trust continue to exist. The Jewish people, as beneficiary, now represented by the state of Israel, appropriated part of the trust corpus lying to the west of the River Jordan, following the surrender by Britain of its obligations as Mandatory trustee in 1948 after the withdrawal of British troops. The legal right of sovereignty over that unappropriated portion of the West Bank formerly held under Jordanian control remains in abeyance and the right thereto is in dispute. Until this issue is resolved, the Jewish people still have a legal right of settlement in that territory.

(vi) UN General Assembly Resolution 181, which recommended a two-state partition of the West Bank, did not change the legal situation, having no dispositive effect and having been rejected by the Arab states. (It also contemplated that each nationality would have "expatriate" communities living within the other nationality's state, with rights of residence but not of citizenship.)

(vii) Israeli-Jordanian Armistice Agreement, April 1949
The inability of the UN to enforce UNGA Resolution 181 induced five Arab armies to launch a full scale war against the nascent state of Israel on the day immediately following the British withdrawal from Palestine. In the process, Egypt occupied the Gaza strip and Jordan occupied part of the land on the West Bank designated in UNGA 181 for the Palestinian-Arab state. Although under the proposed plan of partition Jerusalem was to be internationally governed under the auspices of the United Nations, Jordan also took control of Eastern Jerusalem, from which a large Jewish population was ejected, creating a Jewish refugee crisis to which little reference is ever made. Israel nevertheless succeeded in retaining the western part of the city.

A ceasefire between the belligerents was achieved by the United Nations and given legal effect in the respective Armistice Agreements.

As mentioned in Part 3(c) above ("The Fence and the Green Line"), articles II(2) and IV(2) of the Israeli-Jordanian Armistice Agreement make it quite clear that none of the Agreement’s terms has any impact on the ultimate question of sovereignty over the disputed area, and that the Green Line was specifically excluded from having any political significance. Israel’s legal claim to settle in the West Bank remains unchanged from that which prevailed before 1948 or afterwards.

Thus, Israel is perfectly entitled, as a matter of law, to permit the voluntary settlement of her population beyond the Green Line and to take such steps as the construction of the Fence, in order to protect her population on both sides of that line. Whether it is politically wise for Israel to allow her citizens to settle in that portion of the undistributed West Bank territory whose sovereignty is still in dispute is a different question.

A command of the above facts together with the legal analysis will hopefully allow Fraser Ritchie to reassess his stringent condemnation of Israel.

Professor Gerald M Adler, LLM, JSD (Yale) qualified as a barrister in Canada (Ontario), an advocate in Israel, and a solicitor in England & Wales. He taught law at the University of Western Ontario and the Israel Institute of Technology, Haifa. Inter alia, he also served as senior assistant to the Israeli Attorney General and as the Chief Legal Advisor to the Israel Electric Corp Ltd. Now retired from active practice, Dr Adler has spent the last five years researching “Legal Aspects of the Arab-Israel Conflict Within a Historical and Political Context”, part of which can be accessed on the internet.
 

 


Have your say


Your comment

Fred

Tuesday September 15, 2009, 23:28

Most useful reassessment of the whole situation – why are so many others so muddled in their thinking and writing on these topics? Does truth and legality not matter any more?

All the points were well expressed and explained.


Yisrael Medad

Wednesday September 16, 2009, 07:35

Instead of "West Bank", a geopolitical term first utilized in April 1951 when Jordan illegally occupied and annexed areas that the UN set aside, in 1947, to be the Arab Palestine state, more properly "Judea" and "Samaria" should be employed, not only because they are the correct historical names of those territories but also because the UN used those terms in its 1947 Partition Plan.


Elliott A Green

Tuesday September 22, 2009, 15:42

I find Mr Adler's discussion useful. Here at this link is my own effort on this subject. My piece was first published in Midstream magazine in New York. My fields of specialization are political science and Middle Eastern history.

http://www.dafka.org/news/index.php?pid=4&id=649


Talknic

Tuesday October 13, 2009, 05:26

Unfortunately this article is based on the premise of completely ignoring International Law. An Occupying Power cannot institute its own civil law in an Occupied Territory.

Laws of War Art. 55. “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

The only manner in which Israel can institute its own civil law in an Occupied Territory is to legally annex it. Legal annexation is by agreement or treaty ONLY! Israel's annexation of East Jerusalem was condemned by the UNSC as ILLEGAL. The annexation of East Jerusalem was declared illegal by UNSC Resolution 252 (1968) of 21 May 1968 http://domino.un.org/UNISPAL.NSF/b86613e7d92097880525672e007227a7/46f2803d78a0488e852560c3006023a8?OpenDocument . UNSC Resolution 267 (1969) of 3 July 1969, UNSC Resolution 271 (1969) of 15 September 1969, UNSC Resolution 298 (1971) of 25 September 1971, UNSC Resolution 465 (1980) of 1 March 1980, UNSC Resolution 476 (1980) of 30 June 1980.

--------

Yisrael Medad "Jordan illegally occupied and annexed areas that the UN set aside, in 1947"

The West Bank as it is now known, was legally annexed at the request of the Palestinians http://www.jcpa.org/art/knesset6.htm

Jordan’s annexation was as a trustee. http://www.jewishvirtuallibrary.org/jsource/Peace/legsess.html

Unlike Israel’s illegal annexation of East Jerusalem, there is no UNSC resolution against Jordan’s annexation of the West Bank or against Egypt’s occupation of Gaza.


Gerald Adler

Wednesday October 14, 2009, 11:05

Unfortunately Talknik's comment (published 13 October) is itself based on a faulty premise in international law.

The Hague Convention, Article 55 presupposes that the public land under the control of an occupying army was previously under the legitimate sovereignty of another state to whom it would be ultimately accountable in any peace agreement for its usufruct during the occupation.

In the case of both the West Bank and Gaza, no state has excercised full and legitimate sovereignty for its own benefit since the Ottomans in 1919, from whom it was conquered by the Allies. On their behalf Britain administered Palestine not as a sovereign but as a mandatary, bound by the objectives set in the Palestine Mandate approved by the League of Nations Council.

Following the non-binding recommendations made in UNGA Resolution 181, Britain withdrew from its obligations under the Mandate in 1948 and left the establishment of the Arab and Jewish states to be implemented by their respective peoples as best they could. The territory designated for both states was invaded by five Arab armies. In self defence Israel succeeded in retaining control over the territory intended for her in the Resolution 181 and some of that designated for the Palestinian state. Egypt occupied Gaza, and Jordan captured the area of Judea and Samaria (West Bank) and maintained military occupation of it until 1950 in accordance with the 1949 Israel-Jordan Armistice Agreement. In breach of that Agreement, Jordan purportedly annexed the territory in 1951. That annexation was not recognised internationally - even by Jordan's Arab neighbours.

Significantly during its nineteen years of occupation, Jordan made no attempt to establish an independent Palestinian State! Thus to this present day, there is no internationally recognised sovereign authority over the West Bank to whom Israel is accountable.

To the extent that jurisdiction and power is excercised by the Palestinian Authority, such authority is derived from the 1995 Israel-PLO Interim Agreement on Self Government, which does not prohibit either Israeli or Palestinian residental or any other civilian construction in the West Bank.

Both the 1993 Oslo Accords, which formed the bedrock of the Interim Agreement, and the Interim Agreement itself, specifically reserve the topic of Israeli settlements to be determined in Final Status negotiations. These have yet to be completed.

Talknik should also note that UNSC Resolution 252, which he cites as declaring Israel's action in Jerusalem as being "illegal", does not so declare. The Resolution states that the Security Council CONSIDERS such legislative and administrative actions by Israel which tend to change the status of Jerusalem ARE INVALID and cannot change that status. An act may be INVALID but it does NOT mean that it is ILLEGAL. 'Invalid' means not being legally acceptable or legally binding or enforceable - which is a far cry from being positively ILLEGAL.


Talknic

Friday November 6, 2009, 07:31

Gerald Adler "Unfortunately Talknik's comment (published 13 October) is itself based on a faulty premise in international law".

We'll see....

"The Hague Convention, Article 55 presupposes that the public land under the control of an occupying army was previously under the legitimate sovereignty of another state to whom it would be ultimately accountable in any peace agreement for its usufruct during the occupation."

A) The Hague Convention is very specific, each word laboured over. It doesn't mention anything about presupposing. Do you think they just forgot to mention it?

B) The 1948 war was between the Israel and the Arab states, not Palestine.

C) The British mandate over Palestine was over the defined territory of a non-state entity. I.e., it had borders.

D) At the termination of the British Mandate over Palestine and the subsequent carving off of Israel, what remained of the non-state entity of Palestine, was a smaller non-state entity of Palestine, represented by the Arab states and defined by default, by Israel's sovereign territory and that of the other Arab states. The Arab states are the other collective Contracting Power. Peace agreements have been made individually between Israel and Arab states, NOT Palestine.

"In the case of both the West Bank and Gaza, no state has exercised full and legitimate sovereignty for its own benefit since the Ottomans in 1919, from whom it was conquered by the Allies. On their behalf Britain administered Palestine not as a sovereign but as a mandatary, bound by the objectives set in the Palestine Mandate approved by the League of Nations Council."

Indeed. The British Mandate was over a bordered, non-state, entity. At the termination of the British Mandate over Palestine and establishment of Israel by its (http://avalon.law.yale.edu/20th_century/decad169.asp) Declaration of Sovereignty over the territories recommended by UNGA Resolution 181, what was left of British Mandate Palestine became a smaller non-state entity, called Palestine, represented by the Arab states, with territories defined by default, by Israel's Sovereign borders and the borders of the Arab states.

"Following the non-binding recommendations made in UNGA Resolution 181, Britain withdrew from its obligations under the Mandate in 1948 and left the establishment of the Arab and Jewish states to be implemented by their respective peoples as best they could."

The two parties were the Jewish Agency and collectively, the Arab states, if they wished to form a state. It was not obligatory, being a non-binding resolution. However, a Declaration of Sovereignty IS binding and it defines what is and what is NOT Israeli. Israel declared sovereignty by the borders recommended in Resolution 181. It was recognized by the majority of the international community of states, over riding the Arab states' objections. UNGA Resolution 181 is enshrined in the Declaration of a Jewish State.

"The territory designated for both states was invaded by five Arab armies."

A) Israel was no longer a part of Palestine from the moment it declared sovereignty. The Arab Declaration on the Invasion of Palestine was made AFTER Israel declared. It refers to Palestine, i.e., what was left of Palestine after Israel declared. The Arab states had a right to protect what remained of the non-state entity of Palestine. There is no UNSC resolution condemning the Arab states' invasion of Palestine. Can you explain why? (Something to do with Israeli forces being in the territory of the Arab states ward.)

B) What parts of the newly declared sovereign territories of Israel were invaded by the Arab states?

C) The Arab states had every right to attack Israeli forces in what was now Palestine.

"In self defence Israel succeeded in retaining control over the territory intended for her in the Resolution 181 and some of that designated for the Palestinian state."

A) It is illegal to acquire territory by war/force. It is illegally to unilaterally annex. It is illegal to institute one's own civil law in occupied territories.

B) Prior to declaration, the Jewish Agency had already taken territory outside the proposed borders. On the 15th of May 1948 Israel was already outside the borders it had just declared sovereignty over. Which is why there was no UNSC resolution condemning the Arab states' invasion of Palestine (aka what was left after Israel declared sovereignty). They had every right to protect the territories they represented: Palestine (what was left of it).

C) Territories acquired for strategic advantage during war do not automatically become the territory of the party controlling it at the end of war. E.g., Israel was required to withdraw from Egypt's territory, Lebanon's territory, etc.

"Egypt occupied Gaza, and Jordan captured the area of Judea and Samaria (West Bank) and maintained military occupation of it until 1950 in accordance with the 1949 Israel-Jordan Armistice Agreement. In breach of that Agreement, Jordan purportedly annexed the territory in 1951."

Where is the UNSC resolution condemning Jordan's annexation of the West Bank? Did the UNSC forget? There isn't one, because the Palestinians asked Jordan to annex as a trustee. Legal annexation is by agreement or treaty.

"That annexation was not recognised internationally - even by Jordan's Arab neighbours."

A) Recognition is not the same as legality. For example, NO states at all recognize the Israeli annexation of East Jerusalem. There is a UNSC resolution calling Israel's annexation ILLEGAL.

B) Jordan's Arab neighbours DEMANDED Jordan only be a trustee.

"Significantly during its nineteen years of occupation, Jordan made no attempt to establish an independent Palestinian State!"

It was not up to Jordan. Jordan was only a trustee and as Israel was in control of Palestinian territories acquired by war by 1949, the Palestinians could not declare sovereignty because they did not control all of their territory. (A pre-requisite for declaring sovereignty; precisely why the Jewish Agency had to wait for the British to end the mandate over Palestine; precisely why Indonesia had to withdraw from East Timor).

"Thus to this present day, there is no internationally recognised sovereign authority over the West Bank to whom Israel is accountable."

A) So what? That does not mean it's up for grabs.

B) Whom Israel is obliged to PROTECT, as the occupying power.

"To the extent that jurisdiction and power is excercised by the Palestinian Authority, such authority is derived from the 1995 Israel-PLO Interim Agreement on Self Government, which does not prohibit either Israeli or Palestinian residental or any other civilian construction in the West Bank."

The Laws of War: //Art. 55. The occupying State shall be regarded ONLY as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.//

The Geneva Convention does not allow the settling of an occupying power's civilian population in occupied territory.

Both the 1993 Oslo Accords, which formed the bedrock of the Interim Agreement, and the Interim Agreement itself, specifically reserve the topic of Israeli settlements to be determined in Final Status negotiations. These have yet to be completed.

The settlements are illegal.

"Talknik should also note that UNSC Resolution 252, which he cites as declaring Israel's action in Jerusalem as being 'illegal', does not so declare.

"The Resolution states that the Security Council CONSIDERS such legislative and administrative actions by Israel which tend to change the status of Jerusalem ARE INVALID and cannot change that status. An act may be INVALID but it does NOT mean that it is ILLEGAL. 'Invalid' means not being legally acceptable or legally binding or enforceable - which is a far cry from being positively ILLEGAL."

It's invalid because it IS illegal to acquire territory by force. Unilaterally annexation is not by agreement. If the non-state entity to whom the territory belongs has not agreed to annexation, it has, by default been taken by force.


Amos Yaron

Sunday November 15, 2009, 09:06

Such factually dubious articles like that by Mr Adler are very worrying. This is spurious academia under the cover of propaganda. Time limits a full response so I shall deal with just a few issues that he raises:

1. International law does not recognize "pre-emptive self-defence". This would render the whole concept meaningless if states could simply conquer and annex territory on the supposition that they thought they might be attacked. According to Art 51 UN Charter a state must be subjected to an attack before it can take defensive measures. For authority see Nicaragua, Oil Platforms, Nuclear and Wall ICJ cases.

2. Palestine mandate – the word "title" was deliberately dropped from the mandate. Civil and religious rights included political rights for Palestine’s Arabs. See the statement by Lord Curzon at San Remo Conference in 1920. The British Government wanted to send Jews to Palestine, but subject to safeguard clauses protecting Arab and Jewish rights. They never envisaged a state, but only a home for the Jews to remove them from Europe. Sad but true. As Curzon said when he was Foreign Minister: “I want the Arabs to have a chance and I don’t want a Hebrew State”. This is quoted in Doreen Ingrams, Palestine Papers 1817-1922: Seeds of Conflict, (London: John Murray, 1972) p 96.

3. The right of Jews to settle in Palestine was terminated with end of mandate on 15 May 1948. Israel’s title to Palestine is based on conquest and not the mandate. The Haganah violated the mandate when it embarked on violence and terrorism against British soldiers (remember the King David bombing Mr Adler?) and expelled 85% of Palestine pre-1948 Arab population. For further details on 1948 see the scholarship of Israeli historians Benny Morris, Ilan Pappe and Avi Shlaim. See also the scholarship of Palestinian scholars like Nur Masalha, Walid Khalidi, Rashid Khalidi and Victor Kattan.

4. Article 80 of UN Charter preserved the rights of those peoples who had been formally placed under the mandatory system of administration subject to Art 22 of the League of Nations Covenant as a "sacred trust". This was only ever envisaged to apply to indigenous peoples, not immigrants. See ICJ Namibia cases, particular 1971 opinion.

5. Israel formally accepted UN Resolution 181 (the UN Partition Plan). It is mentioned in Israel’s Declaration of Independence, by its own courts, and in its communication to the governments of the US and USSR. Israel now ignores the Partition Plan because it seeks to conquer and annex more territories for itself and is embarrassed by it. One could of course invoke the estoppel argument and challenge Israel’s claim.

6. Five Arab armies never launched an invasion of Palestine in 1948. As Adler himself notes only Egypt and Transjordan (the British led Arab Legion) entered Palestine on 15 May 1948. That counts for two armies, not five. Moreover, the Haganah had implemented Plan Dalet in April 1948, expelling 350,000 Arabs in the process two months before the Arabs intervened at the request of Palestine’s indigenous inhabitants. See the last report by the UN Mediator Count Folke Bernadotte before he was assassinated by the Stern Gang, those lovely people who also assassinated Lord Moyne and several other British figures, including an attempt on Ernest Bevin, the British Foreign Minister.

7. Israel has no legal right to settle its population in the West Bank. This is crystal clear under international law. See Art 49(6) Geneva Convention IV. See also ICJ Wall Advisory Opinion. See also the legal advice by Theodor Meron, Israel’s Legal adviser in June 1967. You can read the full Meron opinion online at the following link:

http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf

Mr Adler seeks to mislead the Scottish public by dubiously claiming that Israel has a legal right to all of Palestine. This has never been the case. Israel took Palestine by force and maintains its occupation by force. This is might over right - the power of the strong over the weak. There will never be peace in the Middle East so long as people like Mr Adler seek to mislead those who only want a peaceful resolution to the conflict in the Middle East.


Fraser Ritchie

Tuesday December 8, 2009, 09:44

Notwithstanding Mr Adler it is my understanding that international lawyers agree about the illegality of (1) the settlements in the West Bank, (2) the expropriation of Palestinian land in the West Bank, and (3) the existence of the Wall/Barrier so far as in the West Bank, as declared by, and as evidenced by, the opinion of the International Court of Justice of 2004.

The Israeli Government was advised by its own counsel in 1967 that settlements were illegal as they contravened the Geneva Convention, and ignored the advice. (See http:www.soas.ac.uk/lawpeacemideast/resources/ and http:www.southjerusalem.com/settlement-and-occupation-historical-documents/ )

Regarding his claim of a legal inheritance of a Jewish right of settlement in the West Bank, if the Israeli state persists in this, there is no hope for peace in the Middle East.


Hugh Humphries

Wednesday December 9, 2009, 12:50

On 16 September 1948 the United Nations appointed mediator, Count Folke Bernadotte, completed the report which outlined his plans for the hundreds of thousands of Palestinians – who had either been ethnically cleansed from their land or had fled to safety – to exercise their right of return to their land and homes.

Twenty four hours later, the UN mediator was assassinated at the hands of the terrorist group, the Stern Gang. With this assassination the inalienable right of the Palestinian people to return was dropped, as was the question of land ownership and looted Palestinian property.

In 1950 the “Absentee Property Laws” consolidated the theft of land and property of hundreds and thousands of Palestinians refugees whether outwith or within Israel.

Palestinians who tried to return were either deported or shot as the enemy.

Thus is hatred, and long lasting enmity, engendered. And this is the foundation of Prof Adler’s pseudo legal justification for continuing to deny, in the 21st century, the Palestinian people their rights.…

I can recall, during the 80s and 90s, when every visit by a US Secretary of State on a peace mission was accompanied by the provocative announcement of another settlement project. And, of course, the settlement project is far from completion….

Provocation after provocation keeps the pot boiling. Simply ignore any peace intiative – and there have been many – and continue with the Zionist agenda (which Prof Adler fails to mention) to add to the fruits of the well planned military campaigns of ethnic cleansing of 1948. This allows Prof Adler to claim that Israel is not obliged to withdraw from the West Bank until she and her opponent conclude a peace treaty. Until that point in time is reached Israel can continue to do what she wants, using and abusing a legal framework stretching back to the 19th century – with her own military orders (a draconian instrument of control over the Palestinian under occupation of which Prof Adler makes absolutely no mention) making up any deficiences in Israel’s game plan.

It is all very convenient, as is the omission from Prof Adler’s submission that, throughout this period, Israel has ignored international law as its pertains to Palestinian rights. All Security Council Resolutions relating to the rights of the Palestinian people are ignored – and Security Council Resolutions are embedded in international law. However, such resolutions are never passed under Chapter Seven of the UN Charter, which obliges them to be enforced by the international community. And yet Prof Adler would maintain that the state of Israel is is bound by the rule of law. Reality is that she is allowed to pick and choose the laws at will – free, in the short term, from any consequences…

In more recent times the facade of the supremacy of the rule of law in the state of Israel – when it comes to the rights of the Palestinian people – has been further exposed. And where better to look than the very village, Jayyous, whose land has been purloined by the Israeli state.

Prof Adler asserts, effectively, that when the villagers want access to their land, access is allowed – such is the benign nature of the military occupation. I first came across the problems Jayyous faces during Christmas 2003. I received a copy of a press release from the village council seeking help in getting access for their sheep and lambs to the grazing pastures on the “wrong” side of the fence. At that point, yes, the farmers had permits to access their land (assuming the gates were open and the military were in a mood to let them through). However, the sheep had no permits and they were not being allowed through.

Prof Adler suggests that the land now being swallowed up by the settlement of Zufim (or Tzufim) has been bought. That may be so. If your land is is on the wrong side of the wall and you are not allowed to cultivate it, then under Ottoman law it will be confiscated – unless a miltary order leading to confiscation kicks in first. So there must be a temptation, no matter how close you are to your land, for some to bow to the inevitable. I note the online version of Prof Adler’s article makes reference to the land being sold to a Jew, as if this was the reason for the alleged fate of the vendor. I suggest that the alleged fate of the vendor was sealed because he allegedly sold the land to the occupier. It is an irrelevance as to whether the buyer was Jewish, Armenian, American or whatever. Unless Prof Adler has proof otherwise. However, Prof Adler makes no mention of the settler movement which has turned the production of false documents almost into an art form….

The Association of Civil Rights In Israel recently documented no fewer than eight cases where the state was, or still is, in contempt of rulings handed down by the High Court of Justice since 2006. An affidavit submitted to the High Court of Justice a few weeks ago (in response to a petition) by the Defense Minister's adviser on settlement affairs, Eitan Broshi, indicates that from Ehud Barak's point of view, anything relating to Palestinian rights, and not only the High Court's rulings, are nothing more than a recommendation….

With Prof Adler intertwining legal argument with the Zionist narrative within his article, it is important to differentiate between the two. His attempt to remove Palestinian rights by resort to the various laws introduced by the successive occupiers of Palestine is bad enough. To then, as he does, state opinion and views as truisms with no alternative viewpoint cannot go unchallenged.

With regard to Jayyous’ land, we are told that Fraser Ritchie’s land statistics are wrong. In effect we are asked to agree with Prof Adler’s implicit contention that a state intent on acquiring the land of others should be honest with its statistics.

Why, since 9/11, is the position of the International Court of Justice now untenable? If so, why did Israel not cooperate with the court and give evidence to this effect? There are many who would argue that if Israel, over the decades, had adhered to international law as it applies to the Palestinian people, if the US had not been so supportive of a state which acts above the law then 9/11 might never have happened.

The Wall, it would seem, and its associated fence work, has reduced the number of attacks. Unstated is the reason why this wall was not built along the Green Line (armistice line) instead of its current route which conveniently absorbs fertile land, important water aquifers, splitting Palestinian communities asunder. Also unstated is the fact that if Israel abandoned its Zionist agenda, gave up the occupation, recognised Palestinian rights then there would be no need for a Wall.

The attempt to sideline a very brutal, decades long occupation resulting from an appetite for Palestinian land, then try to lay the blame to “Arab-Islamic opposition” very much reveals Prof Adler’s agenda. It denies history, it denies reality. He may as well blame former prime minister Yitzhak Rabin who encouraged the growth of the precursors of Hamas as a counter to PLO nationalism….

Throughout his article Prof Adler refers only once to “rights” in the context of protecting the rights of people. The Mandate given to Britain never protected the rights of the Palestinian people. Over half of those expelled or fleeing their homes to safety in the face of the Zionist onslaught of 1948, did so while under British “protection”, while the Mandate was still in force. The British Defence Emergency Regulations of 1945 were never repealed. So within Israel and occupied Palestine there are no rights, only privileges. Reality is that most Jewish citizens and all Jewish nationals get the privileges, while the Palestinian people are, inexorably, stripped of their rights and their land.

Hugh Humphries, Secretary, Scottish Friends of Palestine

[comment edited from a longer submission]


Michael Horesh

Monday December 21, 2009, 12:42

There are many partisan comments here. What Prof Adler has done with utmost professional care is question whether Israeli so-called settlements are illegal under international law.

The bottom line is that for all the repeated rhetoric of Palestinians and thier supporters, this has never been proven. At best, to date, it has become a "politically acceptable mantra".

And therein lies the irony of Fraser Ritchie's response. "it is my understanding that international lawyers agree... etc". Many politicians and some lawyers may agree, but not all lawyers, because the case has not been proven. Without realising it, Ritchie has recognised the true force of Adler's basic opinion; the settlements are probably not illegal.


David Sherman

Wednesday December 23, 2009, 20:36

Backing away from the technicalities of international law being discussed, don't forget the reality here. If the Palestinians were to lay down their arms, there would be peace. If the Israelis were to lay down their arms, there would be another 6 million dead Jews. Israel is consistently working, albeit imperfectly, for a solution that enables Israel to exist as a Jewish state. The Arabs are consistently working, albeit patiently, towards the destruction of that state.

Note that 1 million Arabs live within Israel with full democratic rights and peace. When Jews can live in "Palestine" under Palestinian Arab control, with the same democratic rights and peace and without needing military protection against being murdered, then the Palestinians will have justified their entitlement to a state. Until then they have failed to demonstrate their entitlement to rule over others, and thus Israel needs to protect the Jews who live in Hebron (where Jewish communities lived for centuries until they were massacred in 1929 and 1936) and other towns throughout the West Bank.

All examination of the legalities of the so-called "occupied territory" should be made in light of the above. Israel would not need to "occupy" the West Bank if Jewish communities could leave as peacefully there as they can in, say, Canada. The Jews would simply live there, as they live throughout the world as minorities. Only Arab countries, it seems, must be Judenrein.


David Sherman

Wednesday December 23, 2009, 22:24

Hugh Humphries writes, "Also unstated is the fact that if Israel abandoned its Zionist agenda..."

The Zionist agenda is for Jews to be able to live as a free people in the land of Israel. That is the essence of the existence of Israel. Only the Jews are denied this right by those who object to Israel's existence.

Israel would allow the "Palestinians" (a "people" that didn't exist before 1964 - they were indistinguishable from Muslim Arabs across the region generally) independence if doing so did not pose a deathly threat to Israel's existence.

Remember: Arabs can live in Israel, and under Israeli military control, and can blossom and survive. Jews cannot live under Arab control without being murdered. Which is fairer?


Bernard Katz

Wednesday December 23, 2009, 23:22

Amos Yaron is mistaken in his claim that “[f]ive Arab armies never launched an invasion of Palestine in 1948”. On the night of 14–15 May 1948, the following countries invaded the territory of the former British Mandate of Palestine: Egypt, Iraq, Jordan, Lebanon and Syria. There were also Saudi Arabian and Yemenite contingents. (See, e.g., Yoav Gelber, Palestine 1948 [2006], ch.8.).

Moreover, contrary to what Mr Yaron insinuates, Plan Dalet was not a plan for evicting the Arab population of Palestine. Plan Dalet, which is publicly available, was the master plan of the Haganah and was designed to meet the threat of an Arab invasion, which occurred in due course.

Though it is true that there were several dozen places where Arab communities were expelled by Jewish troops, the great majority of the Palestinian refugees fled simply to get out of harm's way — not unlike the several million Iraqis who fled Iraq following the 2003 invasion.


Sebastian

Thursday December 31, 2009, 03:43

I have to say, I think many of you are behaving in a completely irresponsible manner.

I am not an international law academic. I am a practising solicitor and I am very familiar with how the law is supposed to be read with political neutrality.

Many of you guys are trying to point score and put forward political viewpoints and this is totally unacceptable. It's like you guys have lost all sight of the most basic tenets of law, international or otherwise.

The sole purpose of a lawyer is to predict what an impartial court would rule, nothing more. As such, a lawyer must distance their legal opinion from their political one, even being prepared to come to a legal view that differs considerably from their political viewpoint. Even a hint of politicisation of your opinion will destroy all legal merit of any argument.

The points made in this article seem reasonable to me, but the greatest charge is that Fraser Ritchie’s previous piece made clear omissions.

If true, it is totally unacceptable that anybody should ignore key arguments of the other side. To do so will destroy the merit of that person's argument since an impartial court will consider all sides not just one.

What is it about the Israeli-Palestinian conflict that prevents a proper and sincere assessment of the legalities of the issues from taking place in an adult manner? It’s really not that hard.

And until you guys have figured out a consensus about how international law affects the land east of the 1967 green line, none of you should be making claims declaring an action x to be legal/illegal. Instead, you must accurately sum up the debate by saying something like “I don’t know for sure. My view is x is legal/illegal but there are many that think otherwise”.


Sebastian

Tuesday January 5, 2010, 03:05

I've now read in a bit more detail a number of the comments by virtually all posters.

The arguments by everybody except Gerald Alder and Talknic is devoid of all legal substance in their entirety.

It's just political rhetoric with the occasional word "illegal" and random references to bodies and positions that are not legally significant or at the very least are highly questionable.

Of course, references to highly questionable sources (like the ICJ ruling on the security barrier) are not in themselves wrong if and only if the user notes the source's shortcomings (or gives a reasonable explanation why the source is not questionable).

And then some people even go as far as talking about history as if that has ANY RELEVANCE AT ALL to international law. The sole reason for such discussion is political rhetoric as if that can be a substitute for real legal analysis.

However, even Talknic has deviated from acceptable norms by being so dismissive of the points made by Prof Gerald Adler, who is after all a professor of international law and deserves a fair hearing.

Sure, if you disagree, fine, but to claim he is "completely ignoring international law" is totally unacceptable when a quick glance at the article shows it is riddled with international law references used in valid places to make valid points.

"Misunderstood" might be a better word if you truly believe your arguments are right. But in all honesty, you have to accept that your view is just your view and not an accurate summary of legal consensus. And, if you try to make an impartial assessment of any facts by Gerald Adler and you come to the view that one of his points is valid, you must say so. It is unbelievable that you read the post and could not accept any valid argument made. And by valid, I don't mean you agree with it. I mean that you simply acknowledge it is a viewpoint that a sane judge might be tempted to reach in an impartial court.

Only a terrible lawyer can't give the other side credit for a reasonable argument. This terrible lawyer would then give his client bad advice in consequence of mis-assessing the legal strength of his case. If the lawyer then loses, the client may even then have a claim in negligence due to the lawyer being unable to recognise the strengths of the arguments of the other side.

There doesn't seem to me to be that much more to some of your replies other than "finger in the ear I'm not listening I'm not listening".

Just as an example. Regarding your reply re UN242.

THE ARGUMENT

"The Resolution states that the Security Council CONSIDERS such legislative and administrative actions by Israel which tend to change the status of Jerusalem ARE INVALID and cannot change that status. An act may be INVALID but it does NOT mean that it is ILLEGAL. 'Invalid' means not being legally acceptable or legally binding or enforceable - which is a far cry from being positively ILLEGAL."

THE RESPONSE

It's invalid because it IS illegal to acquire territory by force. Unilaterally annexation is not by agreement. If the non-state entity to whom the territory belongs has not agreed to annexation, it has, by default been taken by force."

You completely ignored the point being made. It was not the intention of Gerald Adler to suggest that the acquisition of territory by force was legal. It was the intention of Adler to point out that UNSC 242 did not declare settling in East Jerusalem to be illegal even though you initially said it did. By simply reading it, all it seems to me to mean is that these acts shall not be effective in changing the status of Jerusalem.

You claim UN242 claims such settlement is illegal. The text clearly does not say that. Then, in trying to convert the words of UNSC 242, you then assume the action was illegal and then suggest the words of UNSC are compatable with that assumption even though these words are compatible with a great deal of many other assumptions including that settling in East Jerusalem is NOT illegal, merely an ineffective method of changing its legal status.

Proof that you did indeed make the assumption to prove that very same assumption is when you said that Israel could not acquire territory by force. This assumes that prior to Israel acquiring the land by force, it was undisputed territories of some other country or people. Yet that was the very assumption that you were trying to justify by referring to UNSC 242 in the first place. It is poor reasoning then to need that assumption to reach that very conclusion. It’s called a circular argument and these are usually eaten alive in real courts.

Instead, if you genuinely believe that the weak wording of UNSC 242 genuinely declares building in East Jerusalem illegal, then you need to point out that it can equally be argued that UNSC 242 does not make such a declaration. And with the literal meaning of the words failing to make that declaration you seem to want it to, you have to explain how your interpretation is still the correct one, supporting it with Hansard where necessary.


talknic

Wednesday January 6, 2010, 05:00

Michael Horesh:

"The bottom line is that for all the repeated rhetoric of Palestinians and their supporters, this has never been proven."

Sorry, it has. http://wp.me/PDB7k-6r UNSC Res 242 "territories occupied". Simple fact: "territories occupied" and not withdrawn from, are still "occupied".

Confirmed by http://www.un.org/apps/news/story.asp?NewsID=29495 UNSC Res 1860 8 January 2009: "Recalling all of its relevant resolutions, including resolutions 242 (1967), 338 (1973), 1397 (2002), 1515 (2003) and 1850 (2008), Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state".

The Geneva Conventions apply: http://www.icrc.org/web/Eng/siteeng0.nsf/html/genevaconventions#a2 Common Article 3 "common to the four Geneva Conventions, marked a breakthrough, as it covered, for the first time, situations of non-international armed conflicts."

http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5 Geneva Convention 1V Section III. Occupied territories

"Art. 49. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

"Art. 53. Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

"Art. 54. The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience.

"This prohibition does not prejudice the application of the second paragraph of Article 51. It does not affect the right of the Occupying Power to remove public officials from their posts.

"Art. 55. To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate."

http://avalon.law.yale.edu/20th_century/hague04.asp#art55 Laws of War Art. 55 "The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."

The annexation of East Jerusalem was illegal. http://domino.un.org/UNISPAL.NSF/b86613e7d92097880525672e007227a7/6de6da8a650b4c3b852560df00663826?OpenDocument Condemned by the UNSC. UNSC Resolution 252 (1968) of 21 May 1968, UNSC Resolution 267 (1969) of 3 July 1969, UNSC Resolution 271 (1969) of 15 September 1969, UNSC Resolution 298 (1971) of 25 September 1971, UNSC Resolution 465 (1980) of 1 March 1980, UNSC Resolution 476 (1980) of 30 June 1980.

No territory has ever been legally annexed to Israel. http://tinyurl.com/yjgh5lj Israel's actual sovereign boundaries are those the Jewish People's Council accepted on May 14th 1948. No more. no less.

BTW http://wp.me/PDB7k-6r UNSC Res 242 was between "states". The parties were all sovereign "states". They all had "recognized boundaries" by 14 May 1948. UNSC Res 242 called for "acknowledgment of" "recognized boundaries". Nowhere does it say negotiate borders or boundaries. It leaves Israel occupying some of the "territories occupied".


Mikec

Monday February 1, 2010, 16:06

I strongly suspect that Prof Adler is correct for the simple reason that the anti-Zionist lobby would have taken this to court several years ago if they had a chance of winning. As it is, they must "protest too much" in order to support the emotional, political and propaganda elements....


Richard L

Wednesday February 17, 2010, 22:18

I really can't comment as to whether Prof Adler's article has any legal substance or not but as a piece of academic research it is a non-starter. I am very surprised that a professional journal has seen fit to publish a paper without any references, particularly when Prof Adler is disputing points of fact with Fraser Ritchie. What are the sources of Adler's information: the Israeli Defence Force, the Palestinian Authority, an academic source, his own original research, or a hole in his head? I certainly would not want to be cross-examined on this piece of shoddy and opinionated work, regardless of its legal substance.


talknic

Sunday May 2, 2010, 13:54

Snr Adler is justifying a premise. The acquisition of Palestinian territories.

The article is peppered with ye olde Hasbara twaddle, perhaps exemplified by this gem:

"The Mandate has never been formally amended or repealed".

Oh for goodness sakes, READ THE Declaration for a Jewish State, 1st line. Is it wrong? Didn't the Jewish People's Council know what they were doing?

Such is the quality...

Another: "(vi) UN General Assembly Resolution 181, which recommended a two-state partition of the West Bank, did not change the legal situation, having no dispositive effect and having been rejected by the Arab states."

The Declaration of a Jewish State and the subsequent notification to the International Community of States, on which recognition was based, DID change the legal situation. Is Israel an independent sovereignty or not?

UNGA Res 181 set out the conditions under which either party could, if they wished, declare sovereign independence. There is no article in UNGA Res 181 requiring both parties to co-sign or agree, nor could there be (I N D E P E N D E N C E ). Either the individual parties took the opportunity or they did not. The Jewish People's Council took the opportunity, accepted the conditions, ALL OF THEM. It's enshrined in the Declaration of a Jewish State. It's reiterated in the notification to the International Community of States. http://wp.me/pDB7k-sa

To maintain that another party, the Arab States, must also have accepted a non-binding UNGA Res 181 flies in the face of the very basic premise of declaring sovereign independence. As a lawyer, Snr Adler should surely be aware of that a Declaration of I N D E P E N D E N C E is UNILATERAL!!

Meanwhile, Jewish forces were already outside of Israel's newly declared sovereign boundaries at the time they were being declared, making it IMPOSSIBLE for the Palestinians to make a similar declaration even if they had wanted to. In order to declare sovereign independence an entity must be in control of all its territories. As regional powers, the Arab states had the right to defend the non-state territories that remained after Israel's boundaries were declared. They had a right to attack Jewish forces outside of the newly declared Jewish state.

Snr Adler should also know, that there is no customary UNSC resolution condemning the Arab League's Declaration on the Invasion of Palestine, legally lodged with the UNSC.

Nor is there of Jordan's bilateral & temporary annexation as trustee of the West bank, as a regional power. Or of Egypt's occupation of Gaza. Quite unlike the condemnation of Israel's unilateral annexation of "territories occupied".

The situation is the same today as it was 62 years ago. http://wp.me/pDB7k-jA

Same game plan as in 1949/50.

http://wp.me/pDB7k-l5

Nothing has changed. The plan is being enacted today.

Israel has failed to acknowledge the sovereign integrity of Syria. It is claiming territories it said it wanted, contrary to its obligations to the UN, the GCs, international law, UNSC resolutions, armistice agreements.

UNSC Res 242 & 338 were between "states". READ THEM exactly as written.

http://wp.me/pDB7k-hR

ALL the peace agreements, ceasefires and armistice agreements are between STATES that already had declared boundaries, fighting over what remained of the non-state entity of Palestine after Israeli independence was declared. The states were all High Contracting Powers; the laws of war, the UN Charter and the GCs apply. Snr Adler might also have noted that the peace agreements, armistices talk about boundaries between PALESTINE and Lebanon. http://wp.me/PDB7k-Y#northern-border Peace in PALESTINE, the PALESTINE question.

They don't talk about peace in Israel, because the wars have all been fought in Palestine. Israel has not been a part of PALESTINE since the second Israel was declared.

There are NO UNSC resolutions condemning the Arab League's invasion of PALESTINE on the 15th May. Israel was not a part of Palestine and the Arab league had every right as regional powers, to go to the protection of non-Israeli territories and evict Jewish forces (http://wp.me/pDB7k-ki) ... and expel or inter their sympathizers (as the UK, Australia, the US did to Germans and Japanese). Israel's own laws in place since 1948 prevented residents or citizens from entering hostile entities. (Except of course illegal settlers.) http://wp.me/pDB7k-pE