Thursday, December 4, 2014

Israel’s Rights Spelled Clearly

Israel’s Rights Spelled Clearly


With the applications of Taqiyya and Goebbels-like propaganda , the world has accepted certain fallacies i.e. the ‘Palestinians’ or ‘Occupied territory’ or ‘illegal settlements’.


And now the facts…

By Arlene Kushner
This review, with legal and historical background that is essential to understanding Jewish rights in the land, will be succinct, with links to informational sites for those who wish to know more.
It is important to save and share this material, as it provides data critical for properly defending Israel.  Emphasis has been added to certain key phrases.
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With the destruction of the Second Temple in 70 CE, the Second Jewish Commonwealth came to an end.  From then until modern times, what had been Judah, and was renamed Palestina by the Romans, was only an appendage to one empire or another, never an independent country.
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San Remo
Jewish legal rights in the land in modern times began with the San Remo Conference and resultant San Remo resolution, which has been called the Jewish Magna Carta.
For centuries, Palestine had been part of the (Turkish, Muslim) Ottoman Empire. With the end of WWI, the land of that Empire was taken by the Allies. Great Britain, France, Italy and Japan, with the US as observer, met in San Remo, Italy, to decide how it would be divided: Palestine was put under British Mandatory rule.
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Balfour Declaration
At San Remo it was decided to incorporate the Balfour Declaration into Britain’s mandate.  The Declaration, in the form of a letter, was an endorsement by the British government of the establishment of a Jewish home in Palestine.  Written in 1917 by the British Foreign Secretary Lord Balfour, and sent to Lord Rothschild, it stated:
“His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, , and will use their best endeavors to facilitate the achievement of this object.”
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By “Right”
In June 1922, Winston Churchill, who was then British Secretary of State for the Colonies, wrote in a policy paper that:
“…in order that this community should have the best prospect of free development and provide a full opportunity for the Jewish people to display its capacities, it is essential that it should know that it is in Palestine as of right and not on sufferance.”
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League of Nations Formalizes Mandate
In July 1922, the League of Nations, predecessor to the UN, formally adopted the British Mandate for Palestine — a legally binding documentthat was approved by all 51 members of the League of Nations.
It agreed that:
“the Mandatory [Britain] should be responsible for putting into effect the declaration originally made on November 2nd, 1917 [Balfour Declaration], by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people…”
And it gave recognition to:
“the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”
The term “reconstituting” gave acknowledgement to the fact that there had been a Jewish nation in Palestine at an earlier time.
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“Mandate” Explained
The mandatory system of the League of Nations was based on the principle of Allied administration of Mandate territories until such time as they were able to stand alone.  That is, it was understood at the beginning that the British would ultimately withdraw, leaving an established Jewish homeland.
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Area of Mandate Palestine
Credit: Hebroots
The original area of Palestine, for which the British Mandate was assigned, included Transjordan (what is today Jordan, on the eastern side of the Jordan River).
In September 1922, very soon after the League of Nations had adopted the Mandate resolution, Britain assigned TransJordan to Hashemite Arabs from Saudi Arabia.  The Jewish part of the Mandate was thus reduced by over 70%.
Jews then had the right to settle anywhere in a 10,000 sq.mi. area between the Jordan River and the Mediterranean Sea.
Credit: Fanack
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Mandate Transfer to UN
With the formal demise of the League of Nations in 1946, the United Nations was established to succeed it.  The UN assumed obligations of the League: Territories under Mandate were to have a “trusteeship system” applied — this was a continuation of the Mandate system of the League.
Article 80 of the UN declared that “nothing in the [UN] Charter shall be construed…to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments.”  This preserved the Jewish right to settle in Palestine.
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Violence in Palestine
From the time of the establishment of the Mandate for Palestine, Arab challenges to it were considerable,  and were often expressed violently.  This was in spite of the fact at that the same that the Mandate for Palestine was established for the Jewish homeland, Mandates for Syria, Lebanon and Iraq were established, all for Arab populations.  Arabs were, and still are, offended by the presence of a Jewish state.
Perhaps most grievous of all was the Hebron massacre of 1929: for three days Arabs went on a murderous rampage in the city, killing 67 Jews and destroying property. In the aftermath, the second holiest city of the Jews was left bereft of Jews for the first time in hundreds of years.  (Ultimately the British prevented Jews from living in the city because they said they couldn’t protect them.)
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Partition of Palestine
In 1947, the British, who no longer wished to contend with the situation, declared intention to pull out by mid-1948, and turned the Mandate back to the United Nations. A UN Commission considered the matter and recommended a partition of Palestine into one state for the Jews and one for the Arabs, with Jerusalem to be internationalized at first.
Credit: Wikipedia
This recommendation was placed before the General Assembly as Resolution 181, which was adopted on November 29, 1947 by a vote of 33 to 12, with 10 abstentions. The Arab nations voted as a bloc against.
It is imperative to note that General Assembly Resolutions carry no weight in international law.  This resolution was only arecommendation — it was not binding and it did not supersede the Mandate for Palestine in international law.
Legally, this plan would have had binding force only as an agreement between the two parties, i.e., the Jews of Palestine and the Arabs of Palestine.
However, while the Jewish population of Palestinian accepted the proposal, the Arab population did not: they rejected the entire resolution.  Thus the partition plan was aborted.
There is no way for Arabs today to re-instate this resolution or to claim that Jews have a right to only what was defined as a Jewish state by this aborted resolution.
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Declaration of the Establishment of the State of Israel
On May 14, 1948 (Hebrew date: 5th of Iyar 5708), the Jewish People’s Council gathered at the Tel Aviv Museum, and approved a proclamation, declaring the establishment of the State of Israel.
It asserted the natural right of the Jewish people to be like all other peoples, exercising self-determination in its sovereign state and proclaimed the establishment of a Jewish state named “the State of Israel.”
It is important to note that Israel’s legal legitimacy did not derive from the aborted partition plan — even though the state was founded on that portion of Palestine that Resolution 181 had allocated for a Jewish state.
It was established according to international norms: based on a declaration of independence by its people and on the establishment of an orderly government within territory under its stable control.
The portion of Palestine on which Israel was not established becameunclaimed Mandate land.  Nothing in international law had superseded the status of this land as Mandate land.
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War of Independence
Within a day of the establishment of the State of Israel, it was attacked by the states of the Arab League, with clear, openly stated, intention of destroying the new state.
Credit: buildersofzion
When the war ended in 1949, Israel controlled more territory than it had when independence was declared.  Egypt controlled Gaza, and Jordan controlled Judea and Samaria (the West Bank).  Western Jerusalem was in Israel’s hands, and eastern Jerusalem in Jordan’s hands.
Armistice agreements were signed between Israel and the Arab states with which it had been at war.  Armistice lines — temporary ceasefire lines — were defined by these agreements.  They are often referred to as the Green Line.
These armistice demarcation lines did not define a permanent border for Israel. The agreement between Israel and Jordan includes this phrase:
“The Armistice Demarcation Lines defined…in this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines…”
This is exceedingly important because the PLO/PA claims that this line is Israel’s “real” border and the line to which it must withdraw.  This is simply not the case.
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Six Day War
From June 5 to June 10, 1967, Israel fought a defensive war against Arab forces from Egypt, Syria and Jordan.
When it was over, Israel had control of all of Jerusalem, which was united under Israeli sovereignty; the Golan Heights, to which Israeli civil law was applied; the Sinai, which was surrendered as part of the 1979 peace treaty with Egypt; Gaza, which was surrendered in the 2005 disengagement; and Judea and Samaria.
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242
In November 1967, the Security Council adopted Resolution 242, which addressed the situation.
This resolution did not require Israel to withdraw to the Green Line.  Instead it acknowledged the right of every state in the area “to live in peace within secure and recognized boundaries free from threats or acts of force.”
Implicit here was the understanding that the Green Line did not represent a secure boundary.  Israel suffered from a lack of strategic depth within the Green Line — at its narrowest only nine miles wide — which invited attack and made defense in war time difficult. (This is why Israeli statesman Abba Eban referred to the Green Line as the “Auschwitz borders.”)
Thus this resolution called for Israel to withdraw from “territoriesoccupied in the recent conflict.”  “Territories,” not “the territories” or “allterritories,” meaning, withdrawal from *some but not all of the area of Judea and Samaria.  There is a legal history of long debate over this wording, because of its significance.  Not full withdrawal because that would not leave Israel with a secure boundary.
(Added emphasis by IsraelandStuff:
The Three Territories gained from the defensive war of June 1967 were -
1) The Territory referred to as the Golan Height from Syria. — A Section of the Golan Heights was returned to Syria.
2) The Territory referred to as Judea and Samaria or the West Bank from Jordan
3) The Territory referred to as the Sinai from Egypt. — ALL was returned to Egypt.
So:
THERE IS NO REASON TO RETURN ANY of Judea and Samaria.
Since the ‘Territories’ > (plural) belonging to Syria AND Egypt were returned, THAT fulfills legal obligations.)

Once again, then, we see that the claim of the PLO/PA that Israel “must” withdraw to the Green Line is not supported by the facts.
Lastly, the resolution called for “a peaceful and accepted settlement in accordance with the provisions and principles in this resolution.”  That is, it called for negotiations to determine the final border of Israel.
There was no requirement that Israel withdraw prior to negotiations. And those negotiations have never been held.  At the time of this resolution, it was assumed that negotiations would be with Jordan.  Today the situation has changed.
For a more detailed explanation and text of the resolution:
http://www.mythsandfacts.org/conflict/10/resolution-242.pdf
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“Occupation”
There is nothing in Resolution 242 that forbids construction of settlements in Judea and Samaria by Israel.  As this issue is a critical one now, we need to look at this a bit closer:
Israel is not an “occupier” in Judea and Samaria.
The word “occupation” is bandied about regularly.  The PA/PLO have adopted the idea of Israel as “occupier” as a mantra and much of the world has accepted it.  But the facts tell us something else.
[] Judea and Samaria were (and still are) unclaimed Mandate land, to which Israel has the strongest claim.
[] Legally, occupation only occurs when one nation moves into the land of another. But there was no nation legally sovereign in Judea and Samaria before 1967 — Jordan’s presence there was not legal.
[] There are strong legal precedents for the claim that a war fought defensively permits retention of the land secured in that war.
Wrote Steven Schwiebel, former judge of the International Court of Justice:
“…the Israeli conquest of Arab and Arab-held territory was defensive rather than aggressive conquest.
“…it follows that modifications of the 1949 armistice lines.. are lawful…whether those modifications are, in Secretary Rogers’s words, ‘insubstantial alterations required for mutual security’ or more substantial alterations – such as recognition of Israeli sovereignty over the whole of Jerusalem.”  (Emphasis added)
[] With all of the above, it should not be forgotten that areas over the Green Line, in eastern Jerusalem and Judea and Samaria, represent the very heart of Jewish heritage:  From the Temple Mount; to Hevron and the Cave of Machpelah, where the matriarch and patriarchs are buried; to Shilo, where the Tabernacle was brought.  How can Jews be “occupiers” in their own ancient land?
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International Law
People have the impression that “international law” is a firmly defined body of law.  In point of fact, while some international law is established in formal documents, others aspects are very fluid.  Just as is the case with “occupation,” there is a tendency to politicize this term, so that Israel is forever accused of “violating international law.”  Be most cautious when hearing this.
There are, as well, instances in which “international law” is interpreted to mean one thing for Israel and another for other countries.
One fascinating example has to do with the Fourth Geneva Convention, Article 49(6), which says “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”  You may have heard accusations that Israel is in defiance of this Article because of the “settlers.”
There are two obvious retorts to this: First, that Israel is not an occupier, and second, that Israel is not deporting or transferring parts of its own civilian population — the people go of their own volition.
Eugene Kontorovich, however, is currently doing research for a paper and has discovered something else:  There are many instances of movement of civilian population into occupied territory.  However, while international lawyers claim that Israel must actively oppose civilian migration, refuse to provide services to settlers, etc., in these other instances the reaction is much more tempered.  That is, the presumed requirements of “international law” are applied selectively to Israel.
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RELATED ISSUES
Oslo Accords
The Oslo Accords, promoted originally by Shimon Peres, Yossi Beilin and others, was founded on the assumption, which proved to be seriously and dangerously erroneous, that peace might be achieved between Israel and the PLO, considered the official representative of the Palestinian Arab people.  On September 13, 1993, the Declaration of Principles was signed between Israeli Prime Minister Yitzhak Rabin and Yasser Arafat, Chairman of the PLO.
The PLO never properly ratified these Accords, although there was pretense of having done so.  Even more significantly, the PLO was committed to changing clauses in its Charter that call for Israel’s destruction.  Again, there was pretense — a committee to effect the changes was formed — but it never happened.  The PLO Charter of 1968, which calls for Israel’s destruction, is still in place.
It says that Palestine as defined by the Mandate is indivisible and that“armed struggle is the only way to liberate Palestine.”
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On May 4, 1994, the first agreement was signed, spelling out a limited pullback of Israeli forces in Gaza and Jericho, with the PLO moving into those areas.  At this time the Palestinian Authority was founded as an interim administrative authority for a period of five years.
On September 28, 1995, the Interim Agreement (called Oslo II) was signed.  This called for a more extensive pullback from major Arab population centers, with the PA assuming responsibility.  Three areas were defined: (A) in which the PA has total control, (B) in which the PA has civil control and Israel retains responsibility for security, and (C), in which Israel has total control.
All Jewish settlements in Judea and Samaria are in Area (C).  There is nothing in this Interim Agreement that prohibits or restricts the establishment or expansion of Jewish communities in that area.
According to Oslo agreements, so called “final status issues” must be resolved via negotiations:  Borders of Israel, potential division of Jerusalem, the nature of the Palestinian Arab entity, etc.
Unilateral actions that achieve a change in the basic situation are said to be a violation of the Accords, which require negotiations.
PLEASE NOTE:  The Oslo Accords do not specifically call for the formation of a full Palestinian State, although that is the working assumption today. The goal, as stated in the Declaration of Principles is “negotiations…leading to a permanent settlement based on Security Council resolutions 242…” (From 1967, discussed above.)  These were supposed to be the negotiations that would finally determine Israel’s border to the east. Until his death, PM Yitzhak Rabin spoke of an autonomy for the Palestinian Arabs that was short of full statehood.  With these negotiations was to come peace.
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Taqiyya
Put simply, this is a Muslim propensity for falsehoods or deception in certain circumstances. This behavior is not only approved but sometimes mandated by Sharia (Islamic) law if it benefits Islam or protects Muslims.
The fact that Palestinian Arabs practice taqiyya — which Islamic scholar Raymond Ibrihim says is mainstream in Islam, and…very prevalent in Islamic politics — makes it more difficult for Israel to make its case.
Palestinian Arabs, for example, claim that they are the indigenous population in Palestine, descended from the Canaanites or other ancient peoples, while the Jews have no history in the land.
The reality is that those who today call themselves “Palestinians,” until a few decades ago identified simply as part of the Arab nation.  In fact, before the founding of the modern state of Israel, it was the Jews who were referred to as Palestinians, not the Arabs.
Similarly, Palestinian Arabs say that the Jews are on “their” land and must give it back.
The reality is that there has never been a Palestinian state, on this land or anywhere.  There is no case to be made for calling it “their” land.
As well, the Palestinian Arabs say they want a “two-state solution” and will live in peace next to Israel, if Israel will only return to it’s Green Line “borders.”
The reality is that the PLO (Palestinian Liberation Organization) was founded in 1964, before Israel had secured Judea, Samaria and Gaza.  What the PLO wanted to “liberate” was Israel inside the Green Line.
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Arlene Kushner -from her webpage
© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution.
If it is reproduced and emphasis is added, the fact that it has been added must be noted.
Posted on Thursday, December 6, 2012 at 04:57PM by Registered CommenterArlene |

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Inappropriate Use of the Fourth Geneva Convention
By Eli E. Hertz

Background

The language of Article 49 was crafted in the wake of World War II and the Nazi occupation – an occupation that led to a war of aggression in which Nazi Germany attacked its neighbors with impunity, committing a host of atrocities against civilian populations, including deportation and displacement of local populations in occupied Europe. Millions were sent to forced labor camps and those of particular ethnic origin, most notably the Jews, were sent to their deaths in the gas chambers. The drafters of Article 49 were concerned with preventing future genocide against humanity.
Critics and enemies of Israel, including members of the UN and organs such as the International Court of Justice (ICJ) have come to use the Geneva Convention as a weapon against Israel, even when statements by authoritative analysts, scholars and drafters of the document contradict everything said by those who distort history for politically motivated reasons.
It is common knowledge that from its birth, Israel follows customarily international humanitarian law without being told or forced to do so by outside authorities.

“Occupied Territory”

The term “occupied territory,” which appears in the Fourth Geneva Convention, originated as a result of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.
Professor Julius Stone, a leading authority on the Law of Nations, categorically rejected the use of the term “occupied territory” to describe the territories controlled by Israel on the following counts:
(1) Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and does not belong to any other state.
(2) The drafting history of Article 49 [Protection of Civilian Persons in Time of War] – that is, preventing “genocidal objectives” must be taken into account. Those conditions do not exist in Israel’s case.
(3) Settlement of Jews in the West Bank is voluntary and does not displace local inhabitants. Moreover, Stone asserted: that “no serious dilution (much less extinction) of native populations” [exists]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred].”

Deportation and Forced Transfer

Arab opposition to Jewish settlements is based on the last paragraph of Article 49. The “Occupying Power” may not “Deport or transfer parts of its own civilian population into the territory it occupies.”
One can hardly believe this baseless ICJ assertion that Israel, the only free and democratic country in the Middle East used “deportation” and “forced transfer” of its own population into “occupied territories.”
Article 2 of the Fourth Geneva Convention
Article 2 of the Fourth Geneva Convention applies only to conflicts that “arise between two or more high Contracting Parties,” which is not the case at hand, as Israel is the only High Contracting Party (or state) in this conflict, and Jordan never was. Thus, the Fourth Geneva Convention is inapplicable!
Professor Julius Stone, one of the twentieth century leading authorities on the Law of Nations touches on the applicability of Article 49 of the Geneva Convention, writing on the subject in 1980:
“That because of the ex iniuria principle [unjust acts cannot create law], Jordan never had nor now has any legal title in the West Bank, nor does any other state even claim such title. Article 49 seems thus simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49 which is rather directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants, for other than security reasons.
Support to Stone’s assertion can be found in Sir Professor Elihu Lauterpacht’s writing in 1968:
“Thus Jordan’s occupation of the Old City-and indeed of the whole of the area west of the Jordan river-entirely lacked legal justification; and being defective in this way could not form any basis for Jordan validly to fill the sovereignty vacuum in the Old City [and whole of the area west of the Jordan River].”
Professor Eugene Rostow, past Dean of Yale Law School, U.S. under Secretary of State for Political Affairs, and a key draftee of UN Resolution 242, concluded that the Fourth Geneva Convention is not applicable to Israel’s legal position and notes:
“The opposition to Jewish settlements in the West Bank also relied on a legal argument – that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.” It seems that the International Court of Justice never explained it either.
Article 80 of the United Nations Charter
The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’ A trust does not end because the trustee dies [or] resigns.
UN Article 80 was specifically created in San Francisco on 26 June 1945 to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. Jews legal rights of settlements survived the British withdrawal in 1948.

The International Court of Justice [ICJ], Rome Statute of the International Criminal Court [ICC), and the Fourth Geneva Convention lack the authority to affect ownership of the Territories of Judea and Samaria known also as the West Bank.


The Source (original publication) to the MYTHS and FACTS publication of “Inappropriate Use of the Fourth Geneva Convention” can be viewed at: http://www.MYTHSandFACTS.org/article_view.asp?articleID=255
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