Settlements and the Law by Sally and W. Thomas Mallison

Settlements and the Law

A Juridical Analysis of the Israeli Settlements in the Occupied Territories


by


Sally V. Mallison

Research Associate
International & Comparative Law Program
George Washington University

and

W. Thomas Mallison

Professor of Law and Director
International & Comparative Law Program
George Washington University


Map of Israeli Settlements

The map above is based on an official Israeli map,which shows
how Israel is in the process of taking possession of a large part of the West Bank,
page 12 (credit given to the New York Times)



Published by

The American Educational Trust

1982




The Table of Contents can be found at the end
of this document and also by clicking the section headings.



An amplification of the present study will appear in the Mallisons' The Palestine Problem in International Law and World Order to be published by Longman Group in London in 1983. (Out of print but perhaps available at Amazon)



Please consider purchasing a copy of this work for your private library.








I. The International Law Applicable in Occupied Territories



The customary international humanitarian law concerning the protection of civilians in territories under belligerent occupation was developed largely in the 19th century. Following the War of 1812 when parts of the United States came under British occupation, the United States Supreme Court defined some of the legal effects of occupation.1 One of the clearest features of the customary law as developed in the 19th century was the rule that the occupant had no authority to disturb private property rights as opposed to property belonging to the state. As early as 1833, Chief Justice Marshall stated in United States v. Percheman:

[I]t is very unusual, even in cases of conquest [which was then a lawful method of acquiring territory], for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated, that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled.2

The outcome of the customary law-making process was that the belligerent occupant no longer had the sovereign powers which it had under the earlier law. It was regarded as having only a temporary and de facto authority to protect its security interest and it was subject to various substantive limitations to protect the inhabitants.3

The Hague Conferences of 18994 and 19075 codified some aspects of existing customary law, including several provisions of the unratified but widely accepted Brussels Declaration of 1874,6 and added new provisions which were designed to provide more protection for both the lives and the property of the indigenous civilian population of occupied territory. Article 46 of the Regulations annexed to each Convention is declaratory of the preexisting customary law. It provides:

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
Private property cannot be confiscated.

Article 56 of both Annexed Regulations is another provision which reflects the pre-existing law. It states that:

The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.
All seizure or destruction of, or wilful damage to, institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.

Those provisions which were regarded by some as law-making when written are regarded today as having become so widely accepted by the community of states that they also now reflect existing customary law.7

During the Second World War the Nazis in Europe and the Japanese militarists in Asia flagrantly violated the then-existing customary and treaty law concerning the elementary human and property rights of the civilian populations under their control.8 In particular, these regimes attempted to evade the application of the law by annexing territory or bringing it under the rule of puppet regimes. In the post-World War II war crimes trials, Nazi defendants argued that they were not bound by the law of belligerent occupation since the formerly occupied territories had been annexed to Germany. The International Military Tribunal at Nuremberg, as well as other war crimes tribunals, rejected this argument and held that the purported annexations were invalid and that the provisions of Hague Convention IV of 1907 continued to be applicable.9 A notorious practice particularly associated with the Nazis was the establishment of "Aryan" or "racial German" civilian settlements in the occupied territories. Sometimes the indigenous civilian populations were allowed to remain, and in other situations they were displaced by the German civilian settlers.10

The Geneva Diplomatic Conference of 1949 met in the shadow of these grim events with the determination to prevent their repetition. In addition to three Conventions dealing with the subjects of protection of war victims in land warfare,11 naval warfare,12 and in prisoner of war status,13 it produced a Convention which for the first time was devoted exclusively to the protection of civilian populations.14 Since the main abuses of elementary civilian human rights had taken place in occupied territories, the new Civilians Convention is primarily concerned with civilians in occupied territories. Its article 47 provides that the inhabitants of occupied territory are not to be deprived of the benefits of the Convention during a belligerent occupation by any changes made in the institutions or government of the territory, or by agreements between the local authorities and the occupying power, or by any annexation of "the whole or part of the occupied territory ." The provision concerning annexation simply codifies the holding of the war crimes tribunals on this subject.15 Article 49(6) prohibits in broad and unequivocal tenns the establishment by the occupant of civilian settlements without regard to the purported purpose of the settlements.16

The law of the United Nations Charter is also relevant to a legal analysis of settlements in occupied territories. Article 2(4) of the Charter is the basic prohibition upon the use or threat of force otherwise than in self-defense or with the lawful authority of the United Nations.17 This Charter principle is specified in Security Council resolution 242 of 22 November 1967 as "the inadmissibility of the acquisition of territory by war." In addition, the principle of self-determination, which is the right of the indigenous population of a territory to determine its own political future in its own way, is a basic right of peoples under the United Nations Charter.18




II. Appraisal of the Claims of the Government of Israel Under the Criteria of International Law



A. Introduction to the Claims


Shortly after the then newly elected Prime Minister Begin returned to Israel following his July, 1977 visit to the United States, the Israel Digest (American Edition) published an article which included some of his views on the Israeli settlements in the territories occupied in the 1967 armed conflict. It stated:

Israel's Prime Minister asked why Jews should not live side by side with Arabs in Judea and Samaria just as they did in Israel. He affirmed that he had made his position categorically clear in the United States, namely, that Jews have the right to live in every part of the Land of Israel.

Replying to American questioners on this point, Israel's Prime Minister had told them that there are several dozen Bethlehems, Hebrons, Shilohs and Beth-els in the United States. "Imagine if the Governors of some states were to ban Jews from settling in these towns. What an outcry there would be against such racial discrimination!

"How can we, a Jewish government, prevent the Jews of Eretz Yisrael from buying land or building their homes in the original Bethlehem, Hebron, Shiloh and Beth-el?" 19

The analogy Mr. Begin draws between "Jews" moving into towns in the United States and into towns in the occupied territories is a false one. "Jews" moving into any town in the United States do so as individuals with the same domestic law rights and obligations as any other Americans.20 In contrast, "Jews" moving into any place in the occupied territories do so as members of "the Jewish people" 21 with claimed national rights to initially establish exclusivist "Jewish" settlements and later make the claim to sovereignty on behalf of Israel. The meaning of "Jew" is entirely different in the United States law from the meaning of the same word in Israeli law. In United States law a Jew is a private individual who, like the adherent of any other religion, is entitled to practise his religion and is protected from the imposition of a state religion.22 In Israeli law a Jew is a member of a legally defined nationality group who is entitled to special rights and benefits which are denied to other Israelis.23 The two situations are also not analogous in that the acquisition of property within the borders of the United States is governed solely by domestic law. In contrast, the acquisition of property in the occupied territory by any Israeli of any religious persuasion is limited by the international law of the Geneva Civilians Convention.24

In early 1980 Mr. Niall MacDermot, the Secretary-General of the International Commission of Jurists, visited Israel and the occupied territories and met with Prime Minister Begin. He has reported on a portion of this meeting in these terms:

I said I understood the Israeli concern for secure frontiers, but I was not clear what frontiers they were wishing to secure, particularly in view of the increasing number of settlements in the occupied territories which were universally condemned as a violation of international law. What hope had the Palestinians before them?

The position taken by Mr. Begin in reply to these questions was an extreme one. He relied on the Balfour Declaration as establishing the right of the Jewish people to the whole of the British mandated territories of Palestine. It was not correct, therefore, to talk of occupied territories, even though they were subject to a military government. The settlements were settlements in their own land and were therefore not illegal. There had been few Arabs in Palestine at the end of the British mandate. They were, as the PLO Charter itself proclaimed, part of the Arab Homeland, which stretched from the Persian Gulf to the Atlantic. There was, therefore, plenty of room for them elsewhere. As to the Arabs now living within the area, they would benefit from the "autonomy" proposals under the peace treaty with Egypt, and after 5 years time further developments could be expected.25

The position is not only "extreme" as characterized by Mr. MacDermot, but it has no basis in law. The Balfour Declaration as incorporated in the League of Nations Mandate for Palestine contains no promise of legal right to "the Jewish people." 26 Its first safeguard clause prohibits anything which "may prejudice" both "the civil and religious rights" of the Palestinians.27 There were at least twice as many Arabs in Palestine as there were Jewish supporters of Zionism in early 1948.28


Begin and Waldheim

Israeli Prime Minister Menachem Begin showing U.N. Secretary-General Kurt Waldheim
a map of Israel and the distribution of Jewish settlements in Arab lands
from Zionist Terrorism by Arafat Hijazi, Dar Al-Sabah Publishers, Jordan,
1987, p. 47


There is no question but that the overwhelming population of the West Bank and Gaza is still comprised of Palestinian Arabs in spite of the increasing numbers of Israeli civilian settlements which are being implanted there. Two reporters of the Washington Post, following their on-site investigations on the West Bank, wrote in 1980:

Since the accords were signed nearly two years ago, the physical landscape of the West Bank has changed with the addition of 39 new Jewish civilian communities, bringing the total number of settlements operating there, under construction or approved by the government, to 72. They now have a population of about 14,000.

In all, since the West Bank was captured by Israel in 1967, nearly one-third of its 2,200-square-mile area has been bought, expropriated, "closed" or otherwise seized for Israeli civilian and military purposes. The settlements alone cover 28,000 acres.29

There have been consistent pronouncements of authorized Israeli leaders that the settlements are permanent and that Israel intends to retain control of the occupied territories. Among these, the following statements are typical. In May, 1981 Prime Minister Begin, speaking before a crowd of 35,000 at the West Bank settlement of Ariel, stated:

I, Menachem, the son of Ze'ev and Hasia Begin, do solemnly swear that as long as I serve the nation as Prime Minister, we will not leave any part of Judea, Samaria, the Gaza Strip and the Golan Heights.30

On April 25, 1982 Mr. Begin stated on the National Broadcasting Company's program "Meet the Press," that:

You can annex foreign land. You cannot annex your own country. Judea and Samaria [the biblical names for the West Bank] are part of the land of Israel, where the nation was born.31

Yitzhak Shamir, the foreign minister of Israel, stated in January of 1982:

We want peace, but only in conditions that will enable us to continue our existence, and this means the Golan Heights, Judea and Samaria within the boundaries of the land of Israel.32

Overwhelming primary evidence of the Zionist intention to acquire the territories under military occupation is contained in the World Zionist Organization's "Master Plan for the Development and Settlement in Judea and Samaria, 1979-1983," also known as the "Drobles Plan" for its author.33 In its desire to acquire the land without also acquiring its Palestinian population, Israel has used a systematic campaign to force the native Palestinians to leave the area.34 There has been the approach through legislation, with various devices used to create a "legal" condition of absenteeism in order to confiscate privately owned Palestinian land under the 1948 Absentee Property Law35 and assign it to Israeli Jews.36 There has also been deliberately created economic pressure to make it increasingly difficult for the Arab population to remain in the area.37 Along with this there has been the setting up of Israeli settlements in a carefully planned pattern to isolate Palestinian communities. The Drobles Plan makes clear the fact that the settlements have a military purpose and that their chosen locations are part of an overall strategic consideration. Paragraph 1 states:

Settlement throughout the entire Land of Israel is for security and by right. A strip of settlements at strategic sites enhances both internal and external security alike, as well as making concrete and realizing our right to Eretz Israel.

As implemented by the actions of the World Zionist Organization and the State of Israel, the Drobles Plan belies any claim that the civilian settlements are the result of private or spontaneous acts by Israeli private citizens. The acceleration of the building of settlements following the Camp David accords demonstrates clearly the Israeli intention to "create facts" forestalling any possibility of meaningful self-determination for the Palestine people.38




B. The Zionist Ideological Claims Based upon Politico-Religious Grounds


The ideological claims to title to the territories occupied in 1967 are frequently formulated in terms of an alleged "divine" or "eternal" right. They apparently seek uncritical acceptance or belief and are not intended to be subject to the criteria of international law. An official version of the claims appeared in the "Guidelines" of the Likhud Party as it was approved by majority vote of the Israeli legislature in the process of installing the government of Prime Minister Menahem Begin in June, 1977. These Government of Israel "Guidelines" state:

The Jewish people have an eternal, historic right to the Land of Israel, the inalienable inheritance of its forefathers.

The Government will plan, establish and encourage urban and rural settlement on the soil of the homeland.39

"The Jewish people," a term which does not appear in biblical text, refers to the Zionist-Israel world-wide claimed constituency of Jews.40 To the extent that this claim has a supposed religious basis, it postulates the existence of a type of deity who would promote the expulsion of the remaining Palestinians from their homes in the West Bank and the Gaza Strip because this is part of the historic "Land of Israel." For present purposes it is sufficient to point out that these politico-religious claims are not made by Jews who regard their religious identity as primary, but by Zionist Jews for political purposes.

In the Elon Moreh Case41 the Supreme Court of Israel described the affadavit submitted on behalf of the Elon Moreh settlers as based upon the Biblical text of Numbers 33:53. This verse and the preceding one provide in the King James version:

Then ye shall drive out all the inhabitants of the land from before you, and destroy all their stone idols, and destroy all their molten images, and demolish all their high places;

And ye shall dispossess the inhabitants of the land, and dwell therein; for I have given you the land to possess.

While stating that it had to apply the law of Israel in the situation, the Court quoted Leviticus 19:34. This verse states:

But the stranger who dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt.

Although not mentioned by the Court, Leviticus 24:22 is also relevant. It states:

Ye shall have one manner of law, as well for the stranger as for one of your own country; for I am the Lord your God.

It is clear that Zionists and Jews have differing interpretations of the scriptures which are used as the basis of the State of Israel's politico-religious claims.42


Jewish Settler from Elon Moreh

In 1977 photo Israeli carries submachine gun as he walks past temporary buildings
at West Bank Elon Moreh settlement to his car for daily drive to his job in Israel,
page 11 (credit given to United Press International).




C. The Claims that the Geneva Civilians Convention Is Not Applicable in the Territories Occupied since June 1967


All of the state participants in the recurring hostilities in the Middle East are parties to the four Geneva Conventions of 1949 43 which are multilateral treaties with almost as broad a membership as that of the United Nations. As of March 1, 1982 there were only 17 states which were not state-parties to these Conventions.44 Article 158(3) of the Civilians Convention provides that during an armed conflict, including an occupation, a denunciation of the Convention:

shall not take effect until peace has been concluded, and until after operations connected with the release, repatriation and re-establishment of the persons protected by the present Convention have been terminated.

Since termination by denunciation is thereby prohibited, the State of Israel has used various theories attempting to avoid the application of the Convention. Dr. Yehuda Z. Blum, then a lecturer in international law at the Hebrew University of Jerusalem and later the Permanent Representative of Israel at the United Nations, made such an attempt in an article entitled, "The Missing Reversioner: Reflections on the Status of Judea and Samaria" in 1968.45 The significance of this article is that the Government of Israel has acted upon each of the arguments advanced by Dr. Blum.46 The balance of the present inquiry will examine the Israeli juridical claims and appraise them under the criteria of international law.



1. The Claim Postulating the Necessity that the "Legitimate Sovereign" be Displaced by the Occupant

A major Israeli claim originated by Dr. Blum uses the thesis that the application of the law of belligerent occupation in general, and the Geneva Civilians Convention in particular, is based upon the presupposition that the "legitimate sovereign" of the occupied territory must have been displaced by the occupant.47 This argument maintains that Jordan and Egypt were not "legitimate sovereigns" in the West Bank of the River Jordan and in the Gaza Strip respectively because they were there as a result of their alleged acts of aggression.48 Therefore, the Government of Israel is not required to apply the humanitarian law of the Civilians Convention for the benefit of the inhabitants of the occupied territory. The Israeli argument recognizes that article 2 of the Convention in relevant part provides: "The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party . . . . " However, it assumes, without an identifiable basis in law, that the word "territory" in article 2 must be narrowly construed as only including the territory over which the displaced government has de jure title.49 There are several compelling legal reasons which require that this claim be rejected.

First, Dr. Blum and the Government of Israel use an obscure method of treaty interpretation which is not known in international law, or indeed in any civilized legal system. It places no reliance upon either the text of the Convention or its negotiating history, which are the accepted primary sources for ascertaining meaning,50 because there is nothing in either to support the claim.

Second, the claim assumes without supporting evidence that the word "territory" in article 2 of the Civilians Convention must be interpreted as being restricted to territory where the displaced government had the complete formal title as the "legitimate sovereign." Even if the claim that Jordan annexed the West Bank unlawfully should be accepted for purposes of legal argument, this does not mean that this territory is not "the territory of a High Contracting Party" within the meaning of article 2. It has never been previously doubted that the word "territory" as used here included, in addition to de jure title, a mere de facto title to the territory. The words "legitimate sovereign" upon which so much emphasis is placed do not appear in the Convention or its negotiating history.51 Dr. Blum's only authority for his key point that the law of belligerent occupation is not applicable unless the legitimate sovereign has been displaced by the occupant is a treatise entitled The Occupation of Enemy Territory by Dr. Gerhard von Glahn.52 He quotes this authority as stating:

[B]elligerent occupation . . . as regulated by customary and conventional international law , presupposes a state of affairs in which the sovereign, the legitimate government of the occupied territory, is at war with the government of the occupying forces.53

Dr. Blum interprets this as meaning that "the legitimate sovereign" must have a perfect title or complete de jure sovereignty. There is, however, no suggestion to this effect in the source quoted. On the contrary, Dr. von Glahn uses the terms "legitimate government" or "the legitimate sovereign" throughout his book merely to distinguish it from the government of the occupying state.54

Third, the idea that in order to apply the law of belligerent occupation it is necessary for the belligerent occupant to accept the validity of the title of the displaced government to the territory finds no support in either the text of the Convention or its negotiating history. In addition, it is contrary to the well established customary law based upon state practice. For example, during the American Civil War, the United States treated territory which it claimed as the "legitimate sovereign" but which the Confederate States had held as the de facto possessor as being subject to the law concerning belligerent occupation when it was recovered by the United States armed forces.55 This customary international law was widely observed up until the Nazi and the Japanese militarist practices of World War II, and there is nothing in the Geneva Civilians Convention which changes it.

An interesting aspect of this claim regarding the inadequacy of the Jordanian title is that much emphasis is placed upon the allegation that only two states, Great Britain and Pakistan, recognized Jordanian sovereignty over the West Bank, and this is deemed to demonstrate its invalidity.56 Dr. Nathan Feinberg, who is professor emeritus of international law at the Hebrew University of Jerusalem, has pointed out that this is a vulnerable argument since no states have recognized the Israeli annexation of Jerusalem&http://eagle.orgfree.com/alabasters_archive/#151;and he refers specifically to West Jerusalem.57

Fourth, Dr. Blum's argument appears to attempt to resurrect the discredited "just war" theory upon the basis of the maxim "ex injuria jus non oritur." 58 He and the Government of Israel claim the right to unilaterally categorize the opponent's title to land as being the result of aggression and to determine that the effect of this is that civilians in the territory do not receive the protection of the international humanitarian law .59 If accepted, this Israeli argument would have astonishing consequences. The argument contends that the inhabitants of the West Bank were the victims of Jordanian aggression in 1948. It is then concluded that because of this, these civilians must be victimized further by being denied the humanitarian protections of the Civilians Convention under Israeli occupation. If the humanitarian law were to be interpreted so that its application were made contingent upon acceptance by the belligerent occupant of the justness and the non-aggressive character of the war aims of its opponent, it is clear that this law would never be applied. The modern legal interpretation, however, requires application of the humanitarian law without regard to the question of justness or aggression.60

The fifth legal block to the acceptance of the Israeli thesis is that it frustrates the entire humanitarian purpose of the Civilians Convention. The Convention, and indeed the entire humanitarian law, is interpreted in the claim as designed to protect governmental rights and particularly the right to claim disputed territory.61 In contrast, the governments represented at the Geneva Diplomatic Conference of 1949, including the Government of Israel, stated in the preamble to the Civilians Convention that they met "for the purpose of establishing a Convention for the Protection of Civilian Persons in Time of War." To attempt to avoid humanitarian protections for civilians by alleging the existence of governmental rights not specified in the Convention is to turn the entire Convention upside down.62 Since the Convention was written by governments, it is clear that the governmental rights which the Israeli claim alleges to exist would have been specified in the Convention if the governments at Geneva had accepted their validity. An aspect of this claim emphasized by Dr. Blum is his insistence that the purpose of the humanitarian law is to protect the "reversionary rights" of the "legitimate sovereign." 63 Once again, this governmental rights claim using the term "reversionary rights" employs words which do not appear in either the text or the negotiating history of the Civilians Convention. In contrast, the official International Committee of the Red Cross Commentary upon the Civilians Convention characterizes it this way:

[I]t is the first time that a set of international regulations has been devoted not to State interests, but solely to the protection of the individual.64

In addition to the preamble to the Convention, its text demonstrates the unambiguous intention of the states which wrote it to confer rights directly upon protected persons. A recent expression concerning its applicability to the occupied territories came from the Twenty-fourth International Red Cross Conference which was held in Manila November 7-14, 1981. This conference passed a resolution which in paragraph 2 "reaffirms the applicability of the Fourth Geneva Convention [Civilians Convention] to the occupied territories in the Middle East," and in paragraph 5 "affirms that the settlements in the occupied territories are incompatible with articles 27 and 49 of the Fourth Geneva Convention." 65



2. The Claim of Title to Territory Based on "Defensive Conquest"

After contending that the titles of the Arab sovereigns are deficient in one way or another, the Government of Israel then claims to be in the territories occupied since June 1967 as a result of its "defensive conquest" 66 and this premise quickly leads to the conclusion stated by Dr. Blum that Israel has "a better title" in the territory of Palestine, including the whole of Jerusalem, than do Jordan and Egypt.67 The premise assumes, without evidence or legal reasoning, that the Israeli role in the intense hostilities of June 1967 was defensive.

Assuming, for purposes of analysis only, that the claim of Israeli defensive action could be said to be accurate, the validity of the conclusion that title to territory may be obtained by "defensive conquest" should be examined. The customary law of self-defense as incorporated in article 51 of the United Nations Charter gives clear indication that national self-defense is limited to the conservation of existing values or interests and does not provide any basis for an extension of values by the acquisition of title to enemy territory .68 A state exercising national defense may go beyond its national boundaries to repel an attack, but it may not go beyond its national boundaries to acquire territory. Article 2(4) of the United Nations Charter specifically prohibits "the threat or use of force against the territorial integrity of any state . . . ." If international law provided for an exception to this basic rule under the heading of "defensive conquest," it would prove to be an irresistable attraction for a militaristic and expansionist state.69



3. The Claim of Unusual Circumstances: Sui Generis

An auxiliary claim made by Israel is that the Civilians Convention is intended only for short-term belligerent occupations and is not relevant to the unusual circumstances, termed the sui generis situation, in the occupied territories. Dr. Blum stated in the Hearing before a subcommittee of the U.S. Senate Judiciary Committee:

Belligerent occupation exceeding a long period of time simply cannot work under the same constraints as the normal belligerent occupation, if the term "normal" can be applied to a situation of this kind. Obviously the Red Cross Convention and other international instruments have in view the "normal" situation under which the hostilities are ceased or terminated and you have an interim period of a few weeks or months of belligerent occupation followed by peace negotiations which finally dispose of the territory.70

This Israeli argument amounts to a plea for an exception from the generally recognized criteria of the Civilians Convention on the ground of claimed special circumstances which, if accepted, would leave the belligerent occupant in effective control of the territories but without the applicable legal limitations. On the contrary, the provisions of the Civilians Convention were adopted in advance by all the parties, including the State of Israel, in order to be applied to all later situations of occupation. The comprehensive wording of the Convention concerning applicability specifies "all cases of partial or total occupation . . ." 71 and thereby eliminates the possibility of exceptions.



4. The Claim that the Civilians Convention Has Not Been Previously Applied

This claim assumes as a fact that the Civilians Convention has never been applied anywhere else and appears to conclude that, therefore, it should not be applied by the State of Israel.72 The short answer is that as a matter of both logic and law there is no reason to assume that the first application is not required by the binding law of the Convention. There is, of course, no suggestion in the text or the negotiating history of the Convention that it is not applicable for the first time.



5. The Implicit Claim that the Civilians Convention Is the Only Law on the Subject

Neither Dr. Blum nor the Government of Israel has addressed the possibility that even if they were successful in demonstrating the inapplicability of the Civilians Convention they would continue to be bound by, at the least, its customary law provisions. Although the Convention was lawmaking in many respects in 1949, it has now been accepted as law by the overwhelming majority of states for a period of decades. This leads to the possibility that the entire Civilians Convention has become binding customary law. There is no doubt whatsoever that its provisions which were declaratory of the existing customary law when they were written in 1949 have retained their binding status.73 Such provisions, like other customary law, are binding upon the few states which are not parties to the Geneva Conventions of 1949 as well as to the state parties.

The heavy Israeli emphasis upon attempting to avoid the application of the Civilians Convention has resulted in a lack of attention to Hague Convention IV of 1907 and its Annexed Regulations.74 The character of this Convention and its Regulations as binding customary law has been accepted by, inter alia, the Supreme Court of Israel.75 Article 46 of the Hague Regulations prohibits the confiscation of private property including land.76 Its effect makes the utilization of confiscated private property for the occupant's settlements illegal. Article 55 of the Hague Regulations applies to, inter alia, public real estate and provides:

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.

Since the status of the occupant is "only" that of "administrator and usufructuary," it has limited and temporary rights concerning public real estate during the period of occupation. One of the clearest features of the civilian settlements is that they are not intended to be temporary.77 Since they are usually placed upon confiscated land, whether public or private, they are prohibited by the binding customary law of the Hague Regulations as well as by the Geneva Civilians Convention.




D. The Claim that Assumes the Applicability of the Civilians Convention but Contends that its Specific Provision Concerning the Settlements Has Not Been Violated


Dr. Blum has also advanced an alternative argument focusing upon the sixth paragraph of article 49 of the Civilians Convention. This paragraph provides:

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

Almost identical wording, making no exceptions, appeared in the draft Civilians Convention prepared by the International Committee of the Red Cross which was used as a working paper in the Geneva Diplomatic Conference of 1949.78 It was originally written as article 45(5) of the Draft Civilians Convention which was approved by the XVIIth International Red Cross Conference meeting in Stockholm in August, 1948.79 The Geneva Diplomatic Conference of 1949 made substantive changes in other paragraphs of the draft article as well as adding a paragraph to it. The only change made in article 49(6) as adopted is that the word "civil" in the Stockholm draft was changed to "civilian" in the text. This final broadly worded text was adopted by Committee III of the Diplomatic Conference on July 6, 1949 without a dissenting vote being recorded.80 At the Twenty-Sixth Plenary Meeting of the Diplomatic Conference on August 3, 1949 the same text of article 49(6) was adopted, again without dissenting vote.81 There is no suggestion throughout the four volumes of negotiating history of the 1949 Conference that article 49(6) should be given a narrow or restrictive meaning.

The State of Israel has made a reservation concerning the Civilians Convention but it only pertains to the Israeli intention to use the Red Shield of David as its distinctive sign rather than one of the distinctive signs authorized by article 38 of the Geneva Convention Concerning Wounded and Sick in the Field and incorporated by reference in articles 21 and 22 of the Civilians Convention.82 It is also possible for a state to make a declaration concerning an interpretation which it gives to a particular article of a treaty, but Israel has made no such declaration concerning article 49(6). In summary, the State of Israel had ample opportunity to object to article 49(6) during the negotiations leading to its adoption and it had the further opportunity to make a reservation or declaration concerning the narrow interpretation it now advances at the time it ratified the Convention, but it did neither .83 The negotiating history at Geneva provided no indication of concern by any state about the comprehensive wording of article 49(6). It is significant that no suggestions were made, much less action taken, to either narrow the wording or to read exceptions into the broad wording.

Dr. Blum, nevertheless, has contended that article 49(6) applies to only one situation, that is, the particular situation where the civilian settlements displace the population of the occupied territory .84 He argues that this was the only Nazi practice that the article is aimed at. His contention raises a factual question since there is persuasive evidence that substantial numbers of Palestinians have been displaced from their property by the Israeli settlements.85 Assuming for purposes of argument, however, that the Israeli settlements do not displace the indigenous population, it is appropriate to appraise the claim. At the outset, there is no possibility of arguing an exception from the text, since it provides for none and no suggestion of support for exceptions exists in the negotiating history. Dr. Blum has therefore cited the most recent edition of Professor Oppenheim's text edited by Professor Lauterpacht. This text, after summarizing the terms of article 49(6), states that it is:

a prohibition intended to cover cases of the occupant bringing in its nationals for the purpose of displacing the population of the occupied territory .86

There can be no doubt but that this is one of the several fact situations covered by article 49(6). The Nazi practices, however, were not limited to the displacement of the civilian population since it was often retained to provide cheap labor or slave labor.87 Dr. Blum interprets the inherent ambiguity in the quoted text as if it read that the prohibition was intended only to cover cases of the occupant displacing the indigenous population, but that is quite different from the quoted text as well as the text of article 49(6) itself which is not limited to any single purpose. The International Committee of the Red Cross Commentary on the Civilians Convention states in its analysis of article 49(6):

It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own populations to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.88

Nothing in the analysis mentions or suggests a possible limitation of the application of the article to a situation where the civilian population is displaced.

Dr. Blum does not consider article 49(1) which, as a general rule, prohibits forcible transfers or deportations from the occupied territory whether on an individual or mass basis. The fact that this provision stands apart from article 49(6) is a clear indication that the two are not connected or contingent upon one another.89 In addition, article 49(1) deals with "forcible" transfers, whereas there is no such limitation in article 49(6). Therefore, it is not possible to read article 49(1) as stating the only situation in which article 49(6) is to be applied. The International Committee of the Red Cross Commentary confirms this interpretation by treating each paragraph as separate and distinct.90

Professor Eugene V. Rostow, like Dr. Blum, has argued the legality of the settlements. Writing in 1979, he begins his analysis by stating:

[I]t is impossible seriously to contend, as the United States government does, that Israeli settlements in the West Bank are illegal.91

He criticizes the often repeated position of the U.S. State Department, and its accompanying legal analysis, that the settlements are in violation of the Civilians Convention.92 On this point he states:

The Department's position is in error; the provision was drafted to deal with "individual or mass forcible transfers of population," like those in Czechoslovakia, Poland, and Hungary before and after the Second World War. Israeli administration of the areas has involved no forced transfers of population or deportations.93

By citation of authority, he makes it clear that his reliance is upon the views previously expressed by Dr. Blum.94 The conclusion of Professor Rostow's brief analysis is that:

[I]t suffices simply to conclude that Israel's legal position with regard to its right of settlement in the West Bank is impregnable.95

Professor Rostow's consideration of the phrase in article 49(1) which deals with "forcible" transfers, like that of Dr. Blum, does not take into account the fact that article 49(6) does not contain such a limitation and is not contingent upon article 49(1). President Reagan appears to have accepted Professor Rostow's conclusion. He stated in a press interview, shortly after assuming the office of the Presidency, without any consideration of the longterm prior position of the United States, that the settlements are legal.96

In summary, it should be emphasized that the text of article 49(6) contains no limitation in terms of one or more particular purposes of the prohibited settlements. If the purpose of the settlements is to be regarded as relevant, however, the basic aim of the Israeli settlements, like that of the Nazi ones, is to "create facts" which facilitate the acquisition of territory .97




III. Conclusions



The present inquiry and its conclusions apply equally to all of the settlements beyond the pre-June 1967 boundaries of the State of Israel. There are three basic conclusions which necessarily follow from the legal analysis that has been made. The first is that the Geneva Civilians Convention is applicable in all of the territories occupied by Israel since the intense hostilities of June 1967. The second is that the Israeli civilian settlements in the occupied territories are in violation of the Convention. The third is that the Government of Israel has violated the customary law of belligerent occupation as it was developed in the 19th century and codified in the Hague Regulations of 1907 by its actions in the occupied territories.98 Even if the attempts to evade the application of the Civilians Convention were successful, there is no way that the customary law could be avoided.

Because the Civilians Convention concerns people and not territory and is a humanitarian convention, it should be interpreted liberally to effectuate its protective purposes.99 In view of the universal humanitarian interests which are protected, destroying its effectiveness could be disastrous for all peoples. Those Israelis who are concerned with legitimate national interests rather than with the Zionist policy of territorial expansion are aware of this protective function of the international humanitarian law. Among them, Professor Emeritus Nathan Feinberg, writing in New Outlook, has decisively rejected the legal arguments of the present Government of Israel as fundamentally inconsistent with international law.100 Professor Feinberg refers to Mr. Begin's reference to the Israeli Law and Administration Ordinance of 1967 101 in his speech of July 27 in which he presented his cabinet to the Knesset, and his statement that:

With this law we announced to all the nations that no single part of the Land of Israel is occupied or conquered territory .102

Professor Feinberg comments:

This assertion totally contradicts a basic principle of international law, recognizing the primacy of international law over local laws passed by state legislatures. Thus, a state which wants to regulate a certain matter which must be done in accordance with international law is not allowed to base its acts on internal legislation.103

His overall conclusion is that international law governs the situation on the West Bank.

Article 1 of the Geneva Civilians Convention provides in full:

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.104

The obligation to respect a convention is, of course, commonplace. The obligation "to ensure respect," which was added at Geneva in 1949, was a significant new common provision designed to enhance enforcement of each of the four Geneva Conventions for the Protection of War Victims. It means that if anyone of the parties to each Convention violates it, the other state parties are also in violation until they take necessary measures to ensure that the violating party respects it.105 This is an obligation of all of the parties to the Convention, but as a practical matter, it is a particular obligation of the Great Powers including the United States and the Soviet Union.

On November 3, 1980, while the Carter Administration was still in office, the United States voted affirmatively in the roll call vote on resolution 35/122A.106 The last preambular paragraph of this resolution reads:

Taking into account that States parties to that Convention undertake, in accordance with article 1 thereof, not only to respect but also to ensure respect for the Convention in all circumstances.

The first operative paragraph provides that the General Assembly:

Reaffirms that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1969, is applicable to Palestinian and other Arab territories occupied by Israel since 1967, including Jerusalem.

In 1981, during the first year of the Reagan Administration the same subject matter was dealt with in General Assembly resolution 36/147A of December 16, 1981. The last preambular paragraph and the first operative paragraph of this resolution are identical with those of the 1980 resolution quoted above. On the roll call vote on this 1981 resolution the United States changed from its prior affirmative position and abstained.107 This abstention indicates that it has not complied with its obligation under article 1 of the Civilians Convention "to ensure respect for the present Convention in all circumstances." One of the legal consequences of this position is that while Israel is in violation of the Convention because of its violation, inter alia, of article 49(6), the United States is in violation of its obligation to ensure respect for the Convention. The consistent resolutions of the General Assembly calling upon the State of Israel to apply the Civilians Convention and to carry out its terms in the occupied territories108 are a reflection of the member-states' obligation as parties to the Geneva Civilians Convention of 1949 and a start toward enforcement. Much more needs to be done to develop a fully effective sanctioning process.109 If such a process is developed and used to compel withdrawal from the remaining occupied territories (the West Bank, Gaza, and the Golan), the State of Israel has the bright prospect of being accepted within its pre-June 1967 boundaries as specified in Security Council Resolution 242 of 22 November 1967. If the settlement policy initiated under the leadership of the Israeli Labor party and intensified by Prime Minister Begin's Likud party is continued, it will result in the further destruction of human and material values for Israelis and Palestinians alike.



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About the Authors



Sally V. Mallison is Research Associate in the International and Comparative Law Program at George Washington University; W. Thomas Mallison is Professor of Law and Director of the same Program. The Mallisons share a strong professional interest in the control and reduction of international coercion which has led them to a major interest in the achievement of a just and lasting peace in the Middle East. They have both lectured frequently at home and abroad and have served as consultants with the United Nations. Each is the author or co-author of publications in International Law.







Notes



1. U.S. v. Rice, 17 U.S. (4 Wheat.) 253 (1819) held that the laws of the United States were only suspended in the portion of the United States under British occupation during the War of 1812. Shanks v. DuPont, 28 U.S. (3 Pet.) 243 (1830) held that the capture of Charleston, South Carolina by the British during the Revolutionary War did not permanently change the allegiance or national character of the inhabitants.

2. 32 U.S. (7 Pet.) 82 at 86-87 (1833).

3. Art. 3 of Instructions for the Government of Armies of the United States in the Field (24 April 1863), U.S. Army General Order 100, codified the customary law rule that the pre-existing domestic law may only be suspended and provides further that the existing "civil and penal law" may be continued in force. These Instructions are also known as "Lieber's Code" for their principal author, Professor Francis Lieber of Columbia College, New York. It is reprinted in The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents 3 (Schindler and Toman eds., 1981). See D. Graber, The Development of the Law of Belligerent Occupation 1863-1914, 192-216 (1949); G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 45-80 (1957).

4. Hague Convention II with Respect to the Laws and Customs of War on Land and Annexed Regulations of 29 July 1899, 32 U.S. Stat. 1803, 91 Brit. & For. St. Papers 1898-1899, p. 988.

5. Hague Convention IV Respecting the Laws and Customs of War on Land and Annexed Regulations of 18 October 1907, 36 U.S. Stat. 2227, Gt. Brit. Tr. Ser. No. 9, Cmd. 5030 (19101.

6. Schindler & Toman, supra note 3 at 25.

7. 2 Oppenheim, International Law: Disputes, War and Neutrality 229 (7th ed., Lauterpacht ed., 1952).

8. The textual paragraph is based upon Trial of the Major War Criminals Before the International Military Tribunal at Nuremberg (42 vols., 1947-1949) [cited hereafter as I.M.T.], and Law Reports of Trials of War Criminals (U.N. War Crimes Comm., 15 vols., 1947-1949) [cited hereafter as Reps. U.N. Comm.].

9. Judgment, 1 I.M.T. 171 at 254 (1947); Trial of Gauleiter Artur Greiser, 13 Reps. U.N. Comm. 70 at 112-14 (Supreme National Tribunal of Poland, 1946).

10. 1 I.M.T. 171 at 243-47 (1947).

11. 75 U.N.T.S. 31, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.

12. 75 id. 85, Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.

13. 75 id. 135, Geneva Convention (III) Relative to the Treatment of Prisoners of War.

14. 75 id. 287, Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War. The date of each of the 4 Geneva Conventions is 12 August 1949.

15. Supra note 9.

16. See the text accompanying infra note 78.

17. U.N. Charter art. 51 authorizes the use of force in self-defense.

18. Id. arts. 1(2) and 73. See W.T. Mallison & S.V. Mallison, An International Law Analysis of the Major United Nations Resolutions Concerning the Palestine Question 42-48 (United Nations Doc. #ST/SG/SER.F/4, 1979).

19. 20 Israel Digest (Amer. Ed.) No.16, p. 5, col. 2 (Aug. 12, 1977) [published by the World Zionist Organization-Amer. Sec.].

20. Amendment 1 to the U.S. Constitution prohibits the government from making any distinctions between individuals on the basis of their religious identification.

21. The Zionist "Jewish people" concept has been rejected by the U.S. Government as a concept of international law in the letter of April 20, 1964 from Asst. See. of State Talbot to Dr. Elmer Berger, Exec. Vice Pres. of the Amer. Council for Judaism, printed in 8 Whiteman, Digest of Int'l Law 35 (U.S. Dept. State, 1967). This Zionist juridical concept is appraised in W.T. Mallison, "The Zionist-Israel Juridical Claims to Constitute 'The Jewish People' Nationality Entity and to Confer Membership in It," 32 Geo. Wash. L. Rev. 983 (1964).

22. U.S. Constitution, Amendment 1.

23. E.g., The Law of Return, as amended, 4 Israel Laws (auth. transl.) 144 (1950). Rufeisen u. Minister of Interior (Brother Daniel Case), 16 P.D. 2428 (1962), Selected Judgments of Sup. Ct. Israel: Spec. Vol. p. 1 (1971} and Shalit u. Minister of Interior, 23 P.D. (II) 477 (1969), id. at p. 35 apply the statute to determine membership in "the Jewish people."

24. Supra note 14.

25. International Commission of Jurists, Newsletter: Quarterly Report http://eagle.orgfree.com/alabasters_archive/#4, p. 29 at 33 (January-March 1980).

26. W.T. Mallison, "The Balfour Declaration: An Appraisal in International Law" in The Transformation of Palestine 61 at 83-90 (I. Abu-Lughod, ed., 1971}.

27. Id. at p. 90-93.

28. J. Abu-Lughod, "The Demographic Transformation of Palestine" in The Transformation of Palestine 139 at 153-61 (J. Abu-Lughod, ed., 1971).

29. W. Claiborne & E. Cody, The West Bank: Hostage of History 1 (Foundation for Middle East Peace, Nov. 1980). This book is a reprint of articles originally published in the Washington Post. The figures cited in the text were updated in W. Claiborne, "Israel Opens 11 Settlements in Bid to Offset Sinai Withdrawal," Washington Post, Apr. 29, 1982, p. A21, cols. 1-6 at col. 1:

The new outposts bring to 94 the number of Israeli settlements in the West Bank, or 29 more than two years ago, when Begin publicly declared that only 10 more new settlements were planned for the West Bank and Gaza Strip. The population of the settlements is estimated to be about 20,000.

30. Israeli Mirror, SUNI News Service, London, http://eagle.orgfree.com/alabasters_archive/#558, p. 3, May 21, 1981 (reprint from the Jerusalem Post, May 10, 1981).

31. W. Claiborne, "Israel Turns to West Bank: Israel Says Pullout [from Sinai] Was Last Concession," Washington Post, April 26, 1982, p. Al, col. 2 at p. A19, col. 1.

32. New York Times, Jan. 25, 1982, p. 6, col. 2.

33. U.N. Doc. A/34/605 Annex and U.N. Doc. S/13582 Annex (22 Oct. 1979).

34. J. Abu-Lughod, "Israeli Settlements in Occupied Arab Lands: Conquest to Colony,' 11 J. Palestine Studies, No.2, p. 16 at 45 (Winter 1982).

35. 4 Israel Laws (auth. transl.l68 (1948).

36. Supra note 34 at 22-24.

37. Supra note 29 at 2; supra note 34 at 50.

38. Supra note 29.

39. Jerusalem Post, Int'l Edition, June 21, 1977, p. 2, cols. 1-4 at col. 3.

40. Supra note 21.

41. Seventeen Residents of the Village of Rujerib v. Gov't of Israel et al., (The Elan Moreh Case), HCJ 390/79, at pp. 6-8 (Sup. Ct. Israel, 22 October 1979). The citation to this case is from the English translation prepared by the Government of Israel and circulated at the United Nations Headquarters.

42. For Jewish religious perspectives see E. Berger, "An Examination of the Claim of Zionism to Divine Authorization for Establishing Settlements," I Arab Perspectives No.3, p. 24 (May 19801. See also E. Marmorstein, Heaven at Bay: The Jewish Kultulrkampf in the Holy Land, passim (Oxford, 19691 in which the author emphasizes the thesis that Zionism and the religion of Judaism are incompatible.

43. Supra notes 11-14.

44. The states are: Angola, Belize, Bhutan, Burma, Cape Verde, Comoros, Equatorial Guinea, Guinea, Maldives, Mozambique, Samoa, Seychelles, Vanuatu, Zimbabwe (all United Nations members), and Antigua and Barbuda, Kiribati, and Nauru (not United Nations members). I.C.R.C., INFO/DIF Nr. III, 01.03.82-JJS/DE, p. 15.

45. 3 Israel L. Rev. 279 (1968).

46. The then Attorney General of Israel, Mr. Meir Shamgar, set forth the same arguments used by Dr. Blum, including the inapplicability of the Civilians Convention in the occupied territories, in "The Observance of International Law in the Administered Territories," I Israel Y.B. Human Rights 262, 263-64 (1971). A memorandum circulated by the Israeli Embassy in Washington, D.C. entitled "Jewish Settlement in Areas Administered by Israel" (Oct. 25, 1977) also repeats Dr. Blum's arguments.

47. Supra note 45 at 292-93.

48. Id. at 283-88.

49. The same arguments which appear in Dr. Blum's article, supra note 45, were repeated by him in The Colonization of the West Bank Territories by Israel, Hearings Before the Subcommittee on Immigration and Naturalization of the U.S. Senate Committee on the Judiciary, 95th Cong., 1st Sess., p. 24 (Oct. 17, 1977). Dr. Blum also stated:

Coming now to the question of sovereignty, I would have to say this. Yes, indeed, I consider Israel as the potential sovereign over Judea and Samaria.

Id. at 36.

Dr. W.T. Mallison presented a different legal analysis in the same Hearings. Id. at 46.

50. It appears unnecessary to cite legal authority to demonstrate the relevance of the text of an international agreement to the interpretation of that agreement. The negotiating history is useful as a means of providing context and background for the text. The importance of context is emphasized in McDougal, Lasswell, and Miller, The Interpretation of Agreements and World Public Order, 119 et seq. and passim (1967).

51. The negotiating history of the Civilians Convention is in 4 volumes (numbered I, IIA, lIB and III) of the Final Record of the Diplomatic Conference of Geneva of 1949 (Swiss Federal Political Department, undated).

52. The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957).

53. Blum, supra note 45 at 293, appearing in von Glahn, supra note 52 at 273.

54. Supra note 52 at 31-37 under the sub-heading "The Problem of Sovereignty over Occupied Territory" and passim.

55. Lieber's Code, supra note 3, contained arts. 1-10 concerning belligerent occupation which were applied by the United States Government. The U.S. Supreme Court stated in The Grapeshot Case:

The duty of the national government in this respect [during the Civil War] was no other than that which devolves upon the government of a regular belligerent occupying during war the territory of another belligerent.

9 Wall. (76 U.S.) 129, 132 (1870).

56. Supra note 45 at 290.

57. "The West Bank's Legal Status," 20 New Outlook, No.7, p. 60 (Oct.-Nov. 1977).

58. Supra note 45 at 283.

59. Id. at 288, 292-93.

60. The Trial of Wilhelm List and Others, 8 Reps. U.N. Comm. 34 at 59 (U.S. Military Tribunal, 1948).

61. Dr. Blum states:

The legal standing of Israel in the territories in question is thus that of a State which is lawfully in control of territory in respect of which no other States can show a better title.

Supra note 45 at 294.

62. The basic humanitarian purpose of the Civilians Convention is pointed out in "Israeli Settlements in Occupied Territories," Int'l Comm. Jurists Rev. No.19, p. 27, passim (Dec. 1977).

63. Supra note 45 at 293, 301. It is surprising to note that Dr. Blum, after demonstrating to his satisfaction that the humanitarian law does not apply in the occupied territories, then states:

"[T]hat part of the law of occupation applies which is intended to safeguard the humanitarian rights of the population." Id. at 294. He does not, however, identify that part of the humanitarian law which is designed to protect "humanitarian rights" or distinguish it from the part alleged to protect "reversionary rights."

64. 4 I.C.R.C. Commentary on the Civilians Convention 77 (Pictet ed. 1958).

65. Int'l Rev. of Red Cross No. 225, pp. 320-21 (Nov.-Dec. 1981).

66. In the Senate Hearing supra note 49 at 34, Dr. Blum cited only one authority for this argument: Schwebel, "What Weight to Conquest?", 64 Am. J. Int'l L. 344 (1970) which attempts to develop a concept of "defensive conquest."

67. Supra note 49 at 34-35.

68. R. Y .Jennings. The Acquisition of Territory in International Law 55 (1963).

69. Id. at 55-56.

70. Supra note 49 at 42.

71. Art. 2, para. 2.

72. This claim is set forth in supra note 62 at 33 and answered at 35.

73. See generally J.L. Brierly, The Law of Nations 59-62 (6th ed. Waldock, 1963) concerning the making of customary law. Supra note 7 at 451 characterizes, inter alia, article 47 of the Civilians Convention as "to a large extent declaratory of existing International Law." Article 47 is summarized in the text accompanying supra notes 14, 15.

74. Supra note 5.

75. The Elon Moreh Case, supra note 41 at 10-15 tested the validity of Israeli municipal law under the Hague Regulations although the State of Israel is not a party to Hague Convention IV of 1907. The I.M.T. at Nuremberg had previously held that the Hague Regulations were declaratory of the existing law. Judgment. 1 I.M. T. 171 at 254 (1947).

76. See the text accompanying supra note 5.

77. Supra notes 30-33.

78. I Final Record, supra note 51, p. 113 at 121.

79. Id.

80. IIA id. at 760.

81. 118 id. at 416.

82. I id. at 348.

83. The Government of Israel ratified the four Geneva Conventions of 1949 for the Protection of War Victims (including the Civilians Convention) on Doc. 8, 1949. Schindler & Toman, supra note 3 at 491.

84. Supra note 49 at 25-26.

85. See the testimony of Mrs. Ann M. Lesch in Israeli Settlements in Occupied Territories, Hearings Before the Subcommittees on Int'l Orgs., and Europe and the Middle East of the U.S. House of Representatives Comm. on Int'l Rels., 95th Cong., 1st Sess., pp. 7-42 (including appendices) (Sept. 12, 1977). Mrs. Lesch's testimony indictaes the displacement of Palestinians and the permanence of the settlements.

86. Supra note 7 at 452.

87. Judgment, l I.M.T.171 at 243-47 (1947}.

88. Supra note 64 at 283.

89. S.V. Mallison, Israeli Settlements Under International Law 15 (Amers. for Middle East Understanding, 1981).

90. Supra note 64 at 278-80, 283.

91. "'Palestinian Self-Determination': Possible Futures for the Unallocated Territories of the Palestine Mandate," 5 Yale Studies in World Public Order 147 at 159 (1979).

92. Opinion of the Legal Adviser of the U.S. Department of State [1978] Digest U.S. Prac. in Int'l L. 1575 (1980}.

93. Supra note 91 at 160. Professor Rostow's last quoted sentence concerning "no forced transfers" or "deportations" is factually in error. Supra note 85 passim. See J. Yemma, "The Tightening Grip on Gaza: Israel's Quest for a Secure Border," Christian Science Monitor, April 20, 1982, p. 3, cols. 2-3. "[T]he situation on the ground here indicates Israel is intent on keeping Gaza under its control and pressuring Palestinians to emigrate." Id. at col. 2.

94. Supra note 91 at notes 34, 35, p. 160.

95. Id. at 162.

96. Press interview, Christian Science Monitor, Feb. 4, 1981, p. 22, col. 3. Professor Rostow has been appointed director of the U.S. Arms Control and Disarmament Agency by President Reagan.

97. Dr. Blum's statement, supra note 49, of Israel as "the potential sovereign" over the West Bank; the Drobles Plan in the text accompanying supra note 33; W. Claiborne, "Israel Turns to West Bank: Israel Says Pullout [from Sinai] Was Last Concession," Wash. Post, April 26, 1982, p. A1, col. 2 and cont. on p. A19, cols. 1-4; the text accompanying supra notes 30-32.

98. The Israeli violations of private property rights as detailed by Mrs. Lesch, supra note 85 passim, constitute violations of the customary law of belligerent occupation as it was developed in the 19th century. See supra notes 1-3 and accompanying text.

99. Probably the most fundamental principle of interpretation is that a treaty must be interpreted so as to effectuate its basic purpose. See, e.g., Harvard Research, Draft Convention on Treaties, 29 Am. J. Int'Z L. Supp. 937 et seq. and especially art. 19.

100. Supra note 57.

101. 21 Israel Laws (auth. transl.) 131 (1967).

102. Quoted in supra note 57 at p. 60, col. 1.

103. Id. at 60.

104. Supra note 14.

105. Supra note 64 at 16.

106. Only the State of Israel voted against this resolution.

107. Id.

108. See, e.g., G.A. Res. 34/908 (12 December 1979) which calls upon Israel to apply the Geneva Civilians Convention in the Palestinian and other Arab territories under occupation (operative para. 1). Only Israel voted against this resolution.

109. The sanctioning authority authorized by the U.N. Charter appears in Chap. VII (arts. 39-51}. McDougal & Feliciano, Law and Minimum World Public Order (1961), Chap. 4, "Community Sanctioning Process and Minimum Order," analyzes the existing sanctions process.









Table of Contents



Title


I. The International Law Applicable in Occupied Territories

II. Appraisal of the Claims of the Government of Israel Under the Criteria of International Law

A. Introduction to the Claims

B. The Zionist Ideological Claims Based upon Politico-Religious Grounds

C. The Claims that the Geneva Civilians Convention Is Not Applicable in the Territories Occupied since June 1967

1. The Claim Postulating the Necessity that the "Legitimate Sovereign" be Displaced by the Occupant

2. The Claim of Title to Territory Based on "Defensive Conquest"

3. The Claim of Unusual Circumstances: Sui Generis

4. The Claim that the Civilians Convention Has Not Been Previously Applied

5. The Implicit Claim that the Civilians Convention Is the Only Law on the Subject

D. The Claim that Assumes the Applicability of the Civilians Convention but Contends that its Specific Provision Concerning the Settlements Has Not Been Violated

III. Conclusions

Notes

About the Authors







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