The Paper Trail: Settlement Land Theft

The legal battle over settlement building on privately owned Palestinian land is heating up. Yesterday, the Supreme Court barred settlers from taking up residence in houses at Beit El. The court was responding to a petition by two Palestinians from the village of Dura a-Kara, who say the buildings are on land they own. (The Supreme Court order in Hebrew is here; an AP story on the decision is here.)

In honor of that decision, I’m adding a new document to my online archive of settlement history. The mimeographed Hebrew flier, from the flagship settlement of Ofrah in 1976, shows how aware settlers were at the outset that they were using land that belonged to someone else, how intentional the theft was.

First, some background on the latest legal case. The land-owners from Dura a-Kara got legal help from the intrepid human-rights activists of Yesh Din’s Land Advocacy Project. Earlier this year, Yesh Din filed a similar petition on behalf of Palestinians who own the land on which new houses have been built in Ofrah.

To be clear: Neither of these actions touch on whether it’s legitimate for a government to settle its civilians in occupied territory. The issue here is old-fashioned property law. To build your house on someone’s land is theft. It’s like going into someone’s home and taking his TV. The only difference is that the burglar vanishes into the night. The land thief stays in public view. A larger chutzpah quotient is needed.

Together, the two petitions touch on a tiny portion of land theft. According to a Peace Now analysis, using official Civil Administration data, 32 percent of the land used by settlements is the private property of Palestinians. Ofrah is a particularly severe case: 85% of the settlement’s land belongs to Palestinians.

Ofrah was established in April 1975. A small group, led by Gush Emunim activist Yehudah Etzion, moved into an abandoned Jordanian army base north of Ramallah without government permission and in defiance of a policy barring settlement in the area. Nonetheless, Defense Minister Shimon Peres allowed them to stay under the guise of a “work camp,” and became the settlement’s patron. (You can read the full story in Chapters 10 and 11 of my book, The Accidental Empire.)

In 1976, the settlers were planning to build houses on an area of 220 dunam (55 acres) which, they believed, belonged to the state. The 1976 flier, “Build Your House in Ofrah,” clearly states that construction will take place “without approval from the owner of the land.”

According to Dror Etkes of the Land Advocacy Project, the actual area of the Jordanian base was 140 dunam (35 acres), and the surrounding land is the private property of individual Palestinians. Ownership of the land on which the Jordanian base stood is uncertain. Actual construction, as shown in aerial photographs, did not take place until the early 1980s, by which time the settlers may have had government permission to use the area of the base.

The current legal fights are over land taken from Palestinians. The settlers’ original intent at Ofrah was to take land without permission from the state. The bright red thread running through the settlement story, from then to now, is readiness to build “without approval from the owner of the land.”

The Ofrah document is here. The full archive is here.

32 thoughts on “The Paper Trail: Settlement Land Theft

  1. This has been gone over before, but I guess it is necessary to repeat it.
    Your Baka neighborhood , and I presume your Yedidya Congregation is sitting on stolen Arab land. The Jews living there did not pay for it, the owners are presumably in refugee camps or outside the country. The fact that it happened in 1948 does not change the morality of it, in spite of the vehement, but essentially empty claims of the Left. Jerusalem was supposed to be a “corpus separatum” according to the 1947 UN Palestine Partition Plan. It was conquered by force by the Israeli army and then you and others came to this formerly Arab part of the city and grabbed it. It is occupied territory, no less than Judea/Samaria. Same with Lod, Ramla, Ashdod, Ashqelon, Beersheva and other places. Those are occupied formerly Arab cities and towns and the Israeli gov’t transferred populations there, which you claim is a violation of international law (I and others don’t).

    Regarding the claims of “private Arab land”, all I can say is that the courts need to adjudicate the matter, if the Arabs have seemingly valid claims. If they do, they can be entitled to compensation.

  2. I’m always reminded of the Native American experience when I read of land disputes in Palestine.

    In the case of the Indians, might made right. There were cases of promises (treaties even) made by the U.S. gov’t that were ignored by the settlers who simply went ahead and took the land they wanted with few if any attempts at removal by the U.S. Army.

    Like the Whole Land of Israel, the U.S. had the idea of Manifest Destiny. There could not be an Anglo claim of “we were here before” but that didn’t slow things down.

    Here, it took place on a far larger scale, with almost unanimous approval and without pesky journalists and videos. I haven’t heard of anyone saying “the only good Palestinian is a dead Palestinian” but I’m sure that sentiment is held by some.

    The end result, here, is a shattered people subject to alcoholism, suicide and poverty broken by the occasional successful casino.

    But isn’t history full of accounts of those having the power to do so taking what they want? Think of Spain and Latin America.

    The Jews have been exceptional in having been at the receiving end of injustice time and time again. Israel has been their sole chance at a stake that they can defend and they can truly say that they had come to the point where nobody would take them (the closure of the United States to immigration being a big blot on this country’s record).

    As it turned out, the desired land was also the residence of folks ill equipped to resist and the stake has been established. So we come to justice in the present day. It seems to me that there is only one solution – acceptance of the original State of Israel and withdrawal from the West Bank with sharing of Jerusalem.

  3. Of course, the sine qua non of your argument is flawed–it is NOT “occupied territory” however much you repeat that particular piece of propaganda. It is, under international law, “disputed territory” which puts it into an entirely different legal category.

    Besides, every time B’Tselem and Shalom Achshav make screaming headlines with this garbage (yawwwnnn) it turns out months later that the deeds are forged and the underlying statistics are lies–that’s what happened last year, and the year before, so I’m not about to get incensed over this year’s propaganda campaign either.

    BTW, YBD makes an excellent point—are you prepared to evacuate Baka?

  4. Y. Ben-David, for once we mostly agree. Where we don’t is that IMO the earlier theft doesn’t justify the later one. If I somehow get away with stealing my neighbour’s car, that doesn’t entitle me to also steal his TV, and I’d make myself the laughingstock of the nation if I argued that way in court.

    About formerly Arab property in Israel a similar point could be made as about Silesia and the Sudetenland – the eviction of the German population there after WW II was unjust, a crime, as at least the Czech government has at long last, tentatively conceded a few years ago, but to reverse this, a new and equal injustice would have to be committed, namely the eviction of the Poles and Czechs now living there.
    The difference between the Jews who settled in Israel proper and the WB settlers is that the latter acted in bad faith – even those who move there only for the govt subsidies know perfectly well the land isn’t theirs, and that they willingly help pushing the country into the dead end road that is the settlement enterprise.

    I agree that compensation for land taken by Israel in 1948 is a must, but even that will require exchanging the framed picture of the mote in the Palestinians’ eyes for a mirror.

    Note that none of this bears on a right of return for exiled Palestinians. It took an awfully long time, but today Germans with (or without, for that matter) Silesian heritage can go and live in the land of their ancestors, if they so wish. They just can’t throw Poles out of their houses.

  5. To the victors go the spoils and the land . A fair recompense is not in the offing to the Palestinians or their heirs or any defeated people. The Palestinians will live as they have since 1948 and watch as more and more of their land and hertitage is gobbled up by the soon to be minority population and defacto apartheid gets a firmer hold. As long as Israel controls the balance of power with such fervor the wait for peace will be long if ever but the day of reckoning will come and it will be violent and bloody with no quarter given. The question as to whether Israel and the Jewish people survive may be rendered moot

  6. As a U.S. history buff I’m going to note a couple of differences between Native American and Palestinian experiences.

    Yes, both can be characterized as “might” winning and to the victors go the spoils.

    The compensation for Indian nations was never adequate. Reservations on bad land were exchanged for prime land craved by whites. The “trail of tears” for the Cherokees is not unlike the Armenian experience at the hands of the Turks in WWI – forced to relocate, and allowed to starve en masse along the way.

    But there was an attempt at compensation, however inadequate. There was someplace given to the tribes as a place to go to, however unfair the exchange. And in 1924 Native Americans who were born in the United States were given full citizenship and the right to vote. This is just forty years after the surrender of Geronimo, a time scale comparable to the West Bank since the ’67 war. 74 years after being put on the reservation in 1868, Navajos were serving in our armed forces in the Pacific as the famous “code talkers”.

    None of this made for a picnic for Native Americans or put an end to injustices. But at some point the uncompensated thievery stopped. A path to citizenship was opened. It remains to be seen how this would occur in the West Bank.

  7. I would like to clarify that the points I made in my first comment do NOT reflect my own opinion. The Arabs started the war of 1947-1948 with the declared air of driving the Jews into the sea (see Benny Morris’ new book about the War of Independence “1948”). Thus all territories Israel captured were obtained in a war of defense. The Arabs lost their land just like the Germans of Sudetenland, Pomeria, East Prussia, Silesia, etc, as a result of a war of aggression.
    My point is that “progressives” who defend taking Arab land in 1948 but then get all “morally indignant” about Jews settling in Judea/Samaria NOT on confiscated private lands (this is the general rule) but on state lands are simply using a double standard.
    I can understand people on the Left who say “Yes, we have a moral right to settle all of Eretz Israel, but for practical reason, in light of the Arab population of Judea/Samaria/Gaza, we should forgoe that right”. I have no problem with that, but I do have a problem with those who claim it is “illegal” and that the lands are “occupied” (as Aliyah06 correctly pointed out above) but are adamant about their own posssession of lands taken in 1948.
    Leonard Fine warned me at his ‘Peacenowconversation” that it was ‘dangerous’ for me to point this out. I have debated this within myself for some time, but I see no choice. The very right of Jews to self-determination and the justice of Zionism is coming under increasing attack in “progressive” forums and I think Jews need to clarify these things for themselves. Haim and Gershon are what we call in Israel “warm Jews”, i.e. Jews with a very strong identity and committment to the Torah and Jewish people and I think they are capable of resolving these things in their own mind without the danger of them turning their backs on us. I am sure this is true of the large majority of Jews in the world, so it is time for us who support Jewish settlement throughout Eretz Israel to lay our cards on the table.

  8. Y my point is still well- taken demographically and in reality. The Palestinian majority when it comes to it’s assendancy in the foreseeable future may decide to eradicate the Jewish population ;the preservation of is dependant on it’s superior arms which may not always be the case. History is litered with the bodies of the once powerful.

  9. Y your use of the term “progressives” is retarded and certainly sounds retarded like a contradiction when you use it. Progressive means”moving forward”;therefore, the converse is moving backward.Teddy Roosevelt along with Bob LaFollett lead the modern day “progressive ” movement in the United States . Teddy called his party the “Bullmoose Party” of social liberals and economic conservatives. To put it more bluntly do you know how stupid you sound?

  10. “The Palestinian majority when it comes to it’s assendancy in the foreseeable future…” – that’s a big if. That demographic demon has been around since 1967 – and I’ve been around to remember. What is “forseeable”? Are Yoram Ettinger’s prognostications possible?
    If we had been stricken with the demographic despondency affleiction in 1910, we would we be now?

  11. TRUST IN G-D – and you will have peace.

    “When the Jewish people will trust in G-d, that the Land of Israel belongs unequivocally to them, and are willing to declare this openly to the nations of the world, then “No one will contest the matter, and you will not need to go to war.” In fact, even weapons will prove unnecessary…” The Lubavitcher Rebbe, (Likutei Sichos, vol. 34, p. 8)

    All the nations are one day going to come together and start talking peace amongst themselves. This talk of peace will have one underlying goal: to destroy Israel. And their rationale shall be: because they [the Jews] established for themselves their own government; and though the Jews will be in tremendous danger at that time, nevertheless they will not be destroyed; in fact, from that very situation they will be saved.

    Rabbi Moshe Cordevero (Ramak) on Zohar Bereishis, 199 – approximately 500 years ago

  12. YBD, there is a simple answer to your question about why “the Left” considers West Bank settlement illegitimate and the settlement of places within the Green Line legitimate. It is a question of law, not of abstract moral principles, and the law has changed.

    Up to around 1950, it was considered acceptable in international law for territory to be acquired by conquest; since around 1950 it has not been. Which is why Israel has been overwhelmingly recognized internationally as legitimate within the Green Line, but its annexation of East Jerusalem and the Golan is recognized by nobody, including all of the countries who were happy instantly to recognize Israel in 1948/9. And which is why settlements on the West Bank (and indeed East Jerusalem and the Golan) are in violation of Article 49 of the 4th Geneva Convention (which bans settlement in territory outside one’s own that is occupied during conflict), and towns in pre-1967 Israel are not (since the Geneva Convention has no objection to settling one’s own recognized territory, no matter how that territory was originally acquired).

    It is true that this legal change did not take place overnight, but was the consequence of a series of treaties and legal decisions which were established and codified over a period: there was no single moment in time when the law suddenly switched. But the key point remains: 1948 was (just) on the right side of the division, so the Jewish conquest of and settlement in (e.g.) Ashkelon was legal in international law, just as Polish settlement in Silesia was, since those territories were taken before 1950. 1967 was on the wrong side of the division, so Jewish settlement in (e.g.) Ariel was not legal, just as Indonesian settlement in East Timor was not and Turkish settlement in Northern Cyprus was not. It really is that simple.

  13. David, popular misconceptions aside, international law has not changed substantially in regard to the laws about land taken in a defensive war since 1950. There may be a political agenda that wishes to keep the ’48 cease-fire line as a ‘border’ but in reality and in law that is merely political fantasy.

    I would add also that since Jerusalem was “international” under the Partition Plan, the Palestininans have NO claim to that city — the Plan called for it to be internationalized; the Jordanians ‘annexed’ it and then Israel took it. It was never Palestinian, just as the West Bank was never Palestinian. I don’t disagree that the Palestinians should achieve their aspiration of statehood–I simply disagree that “international law” somehow dictates that the border must be on the Green Line.

    BTW, it appears that Morocco is going to keep it’s ‘disputed territories’ in N.Africa, that Britain is keeping its colonial outpost in Northern Ireland with its settlers, that Turkey is keeping its settlers on Cyprus and is about to incorporate this move into a binding treaty with Greek Cyprus….so I suspect that the Right is correct and that rather than give away land, we should hold on to it and use it as a bargaining chip. After all, giving it up as a ‘confidence building measure’ and to prove we are ‘serious about peace’ is the reason that Askelon and Sderot are on the receiving end of Katyushas and Kassams this month.

  14. “David, popular misconceptions aside, international law has not changed substantially in regard to the laws about land taken in a defensive war since 1950.”

    So you claim. The overwhelming majority of actual international lawyers, however, disagree. This, for example, from Lung-chu Chen, “An Introduction to Contemporary International Law” (2nd ed., New Haven, 2000), p.122:

    “Although a minority dissents, it is increasingly conceded that contemporary international law has no scope for the acquisition of territory through conquest or subjugation. It has been asserted that the acquisition of territory resulting from self-defense against an aggressor state is still permissible, since self-defense remains permissible. That argument, however, misconceives the scope of self-defense”.

    Or this from Martin Dixon, “Textbook on International Law” (6th ed., Oxford, 2007), p. 161:

    “Prior to 1945 … the use of force was perfectly lawful and title to territory acquired through conquest was quite common … From the moment aggressive force became unlawful it has been impossible for a state to acquire title to territory by conquest … In similar vein, it is clear that a state that exercises force in (alleged) self-defence is under a duty to return (or retreat from) any territory of the aggressor state which it has occupied … In such circumstances, although the initial use of force by the defending state would not have been in violation of the principles of international law embodied in the [U.N.] Charter, the subsequent retention of territory when the threat has passed would be unlawful”.

    I could multiply examples, but this should be sufficient. If you want to accuse these distinguished authors of standard textbooks on international law of engaging in “popular misconceptions” , you are naturally free to do so, but I don’t think your opinion has much credibility when set against their expertise.

  15. What is sacred about 1950? All of “Israael” is stolen territory and eventually must be returned. I will merely state what every 5 year old in Bangladesh knows. You can have “Israel” or peace, but not both

  16. David–you made my point–the key words in both quotes were “the aggressor state ” — and where there is NO state, that rule does not apply. Had Jordan’s annexation of the West Bank been internationally recognized, Israel might be asked to return “Jordanian land” lost to Israel in Jordan’s acts of aggression — however, where there is no sovereign state, the issue is moot. The Palestinians and the Left repeatedly attempt to bootstrap this argument by claiming it is “Palestinian” land and leaving out the sine qua non that there must first be a sovereign Palestinian State. This issue by the way has already been extensively briefed and argued in the context of Morocco’s retention of its neighbor’s “disputed territory.”

    Further note: textbooks are just that– textbooks. They reflect the author’s viewpoint, not necessarily the law. Precedent is better than textbooks.

    Raed–you are simply spouting propaganda. The land belonged to the Jews originally, historically. It was conquered by Arab Moslems, so the argument can be made that the Moslems are the theives….but we need not resort to the ancient historical record. The League of Nations and United Nations both agreed as the representative body of the post-war worlds, that partitioning the land between the claimants along demographic lines would be a just settlement. The Jews agreed to this, although what the UN gave us was substantially smaller than what the League of Nations had in mind—it was the Arabs who rejected this, insisted that they receive it all, claimed that Jews would be exterminated, and set off a war that destroyed the possibility of a Palestinian state, created the Palestinian refugee problem, and gave birth to the contemporary phenomena of world-wide Arab terrorism. I’m happy to see you post here–it shows that you have an inquiring mind and perhaps can move beyond the sound-bytes of the Palestinian propaganda machine.

  17. “David–you made my point–the key words in both quotes were “the aggressor state ” — and where there is NO state, that rule does not apply.”

    You know, it’s remarkably difficult to argue against someone who keeps switching ground. Your original claim (let me remind you) was that “international law has not changed substantially in regard to the laws about land taken in a defensive war since 1950”. I provided a clear demonstration that the law about land taken in a defensive war HAS changed, and so you suddenly offer a new argument – that because the prior occupier (Jordan) itself had no legal claim (which is true), Israel’s conquest of the territory evades the ban on defensive conquest.

    First, I should note that, despite your attempt to parse his words otherwise, the author of the second book EXPLICITLY rejects your claim that his statement does not apply to the West Bank: he goes on (in the part I did not quote) to use the Israeli conquest of the West Bank as an example of the sort of war that gives the victor no claim to the conquered territory. Precisely the same ban on defensive conquest applies even when the territory conquered did not belong to the belligerent state in the first place.

    As for your new legal claim, it is hardly any better than the old one. This is Yehuda Blum’s “missing reversioner” theory, which he put forward in a brief article in 1968. It has become the official position of the Israeli government, but is accepted by no international authority and indeed has been implicitly rejected repeatedly by every international ruling on the subject: its arguments are accepted by virtually no international lawyer outside Israel. If you want to see why, there is a clear discussion of the issue in W.T. and S.V. Mallison, “The Palestine Problem in International Law and World Order” (London, 1986), pp.252-62. The chief thing to note here is not merely that there are two points of view: more important is that Blum’s argument is generally rejected outside Israeli propaganda circles, and the counterarguments of the Mallisons (and others) are generally accepted as valid.

    As for your citation of Morocco as a parallel, I will simply note that Morocco’s occupation of and claim to the Western Sahara (which came about under quite different circumstances from Israel’s on the West Bank) is itself not recognized by any state in the world, and indeed has been explicitly rejected by numerous states, including the US. I’m not entirely sure why you think that you validate Israeli illegality by observing that Morocco is also doing something illegal, but that is all that your citation of it as a “precedent” adds up to.

    In general, instead of desperately trying to find some loophole in the international law of conquest and occupation that will allow you to achieve your preferred political end while maintaining a fig-leaf of legality for it, perhaps it would be better for you to recognize the legal problems in the Israeli position and work to bring Israel back within the bounds of international legality.

  18. I think more attention needs to be paid to Raed Kami’s critique, because it is the heart of the matter. As long as a sizable number of Palestinians think like he does, negotiations make no sense, and just confirm his way of thinking

  19. Re Morocco’s occupation of Western Sahara: you overstate matters. The Arab League has recognized Moroco’s occupation of WS; the US has remained diligently neutral on the issue. It is, in a nutshell, very much like the West Bank — a former Spanish colony spawns a ‘resistance group’ demanding recognition as an independent state despite Morocco’s position that it was Moroccan land stolen by the Spanish colonialists. The ‘resistance movement’ engages in violence to pursue statehood, and Morocco seizes the land, occupies it, and uses that occupation to put down the ‘resistance group.’ Is it a carbon copy of the Israel-Palestine conflict? No, but it has strong similarities which the Left seems to dismiss because the Left has a political agenda of demonizing Israel for “occupation” while wholly ignoring similar ‘occupations’ in the rest of the world.

    I am not ‘desperately’ trying to find loopholes or changing the subject, and if you wish to express differences of opinion, kindly do so without the personal attacks. They don’t add any weight to your argument.

    You overlook the fact that In 1949, Israel and Jordan signed an armistice which specifically stated that the armistice lines were “without prejudice to future territorial settlements or boundary lines.” You can find this in the Jordanian-Israeli General Armistice Agreement, April 3, 1949, Art. VI, sect. 9. Furthermore, UN Resolution 242, passed AFTER the 1967 war,N calls for Israel to withdraw from “territories” (not “all territories” or “the territories”) as part of a peace agreement wherein Arab states would end their belligerence against Israel. Needless to say, most Arab states remain in a declared state of war against Israel, with the notable exceptions of Egypt and Jordan. The rest of the Arab League is still in a “state of war” and Iran is itching to join them.

    No nation, under any provision of international law I’ve found, has no obligation to surrender control of territory to an entity which is in a state of war with the nation. The constitution of the PLO and the Hamas charter both explicitly call for the destruction of the state of Israel. Given that, Israel has no international law obligation to give any territory to a government controlled by the PLO or Hamas.

    In fact, when you really get into the whole defensive war/annexation issues, you’ll find that there is a general agreement that as long as a state of war exists, there is no obligation whatsoever to return territory.

    IN short, instead of chanting “land for peace” I think the focus needs to be on peace first, borders later.

    As for Raed Kami’s comment–well, I’m dying to ask him if he would like to surrender Bangladesh back to India because the Bengalis “stole” it from India……once again, it seems that every other people on earth have the right to self-governance and self-determination except the Jews.

  20. First, on Western Sahara, the US has not remained neutral (at least in law); Robert Zoellick, the US trade representative, when negotiating a trade agreement with Morocco went on record as rejecting Morocco’s claim to sovereignty (see http://www.house.gov/pitts/press/releases/040722r-FTAwsahara.htm). The UN has taken the same stance. Even the Arab League, which has implicitly supported Moroccan sovereignty by referring to its “territorial integrity” has not been willing to state outright that it recognizes that sovereignty, doubtless because some of its own members – notably Algeria – take the opposite view.

    As for my commenting on your shifting ground, it is important to point out when you do so, not as a personal attack, but because only that way can the status of the argument be kept clear. You are repeatedly abandoning one legal issue and replacing it with another, all while claiming to be saying the same thing. Your latest move seems to be to give up on the “missing reversioner” argument and rely on the text of the armistice treaty with Jordan (although, as you previously noted, Jordan had no legal right to the West Bank in the first place, so the treaty with her cannot give Israel claims over the West Bank) and the text of Resolution 242.

    On the latter, the wording was designed by Lord Caradon, the British representative, so as to allow for possible future modifications of the border. BUT it also included a preamble “emphasizing the inadmissibility of the acquisition of territory by war”, which (as Lord Caradon explicitly stated) provides the overriding framework within which the clause about “withdrawing from territories” was to be interpreted. Israel was not required to withdraw to the 1949 ceasefire lines, but her conquests give her no claim to OWN any territory beyond those lines until it is ceded to her by mutual agreement of the parties as part of a peace agreement.

    The same point can be made about your argument that “No nation … has [any] obligation to surrender control of territory to an entity which is in a state of war with the nation.” This is true, if you simply mean that Israel does not have to leave the West Bank until she is satisfied that she can do so safely. But as long as she retains control of the West Bank, she does so only as an occupier, not as the legal owner of the territory, and is bound by the laws of occupation, primarily the Fourth Geneva Convention. Hence Israel, even while controlling the territory, cannot (among many other things) legally place civilian settlers on the land, nor can she legally annex it to herself (as she has sought to do with East Jerusalem and the Golan).

  21. The link you provided re: Western Sahara simply reiterates that the sovereignty of the area is in dispute and the US supports UN efforts to resolve the conflict. That’s about as ‘neutral’ as I think one could be—it fails to condemn Morocco for its illegal ‘occupation’ of Western Sahara. The US State Dept mildly noted that “The sovereignty of the Western Sahara remains the subject of a dispute between the Government of Morocco and the Polisario Front, an organization seeking independence for the region,” and went on to detail the history and current status–no condemnation there, either. The most recent outbreak of US diplomacy has been praise for Morocco’s willingness to allow ‘autonomy’ : “broad-ranging autonomy consistent with international standards for self-determination” to solve the question of Western Sahara and “compromising its long-established position” for integrating it. ” Of course, the Sahrawis would rather have independence, but the US isn’t ruffling Morocco’s feathers with such talk.

    “You are repeatedly abandoning one legal issue and replacing it with another” — no, I’m not. Blog commenting is incremental by nature, and I’m not abandoning any argument—I simply respond with additional points to your arguments.

    As for settlements, the Geneva Convention, assuming arguendo that it even applies to the disputed territories, prohibits the forcible transfer of civilian populations — not voluntary settlements on unoccupied land which sits in no sovereign domain.

    As for “occupation” — you can’t “occupy” what is legally yours. If we’re agreed that the Jordanians illegally annexed the West Bank, and so have no standing to make laws and regulations, then there is no reason to accord their settlement agreements any weight.

    Who was the predecessor power? The League of Nations, which with the dissolution of the Ottoman Empire, became the source of international law with regard to former Ottoman territories. In 1920 at the San Remo Conference, the international community recognized Jewish rights to a homeland in the territories formerly belonging to the Ottomans due to both demographics and historical connections to that land, as well as to settlement throughout the land. This decision, creating a Jewish National Home, was then ratified by the the League of Nations in 1922 . It was also endorsed by a joint resolution of the United States Congress later that year. In 1925, another official US endorsement of the Jewish National Home in this territory was announced in the form of the Anglo-American Convention on Palestine.

    After WWII, when the UN was founded, ithat international body’s Charter reaffirmed the existing territorial rights of peoples as they had been before the war — in effect, endorsing the Jewish National Home in the territory outlined by the League of Nations.

    The British had no more standing than the Jordanians–they were mere caretakers of the Mandate.

    With the pragmatic acceptance by the Jews of a further partition of their National Home in 1947 (the first partition created Jordan), there could have been two states–but the Arabs rejected this partition, insisting on the creation of an Arab state. The Partition Plan was thus rendered moot.

    Subsequent cease-fire lines with Jordan are simply that–cease-fire lines. Not borders. No borders have ever been established, and no sovereign Palestinian country has been established. Res. 242 recognizes that–that borders need to be mutually recognized and secure.

    But the West Bank, the Golan and Jerusalem don’t need to be annexed — by operation of law, they are ours alreadyand have been since 1922. The whole “peace process” is simply an effort to give up what is ours in return for a viable peace. Successive Israeli governments have attempted this without success. It’s my opinion that these efforts have failed due to unrelenting Arab irridentism.

    My reason for pointing out the examples of Morocco and Cyprus is to highlight the international standard when it comes to disputes among states versus disputes involving Israel.

  22. ““You are repeatedly abandoning one legal issue and replacing it with another” — no, I’m not. Blog commenting is incremental by nature, and I’m not abandoning any argument—I simply respond with additional points to your arguments.”

    Oh, really? Are you still claiming, then, that the international law on defensive conquest hasn’t substantially changed, and that those who think otherwise are engaging in “popular misconceptions”? I had the distinct impression that after I exploded that you skewed off in a different direction altogether. Or what about when you not merely dropped the “missing reversioner” theory, but immediately employed an argument which, if it had any force at all, could only have done so on the assumption that the “missing reversioner” theory was invalid?

    But I suspect that the problem really is that you DO believe what you say, and that you don’t recognize that in each of your successive posts you have not merely raised new arguments, but significantly changed the underlying legal basis on which you were arguing. This is what makes it extremely difficult to establish a coherent line of argument here.

    And so we reach the latest iteration: “As for settlements, the Geneva Convention, assuming arguendo that it even applies to the disputed territories, prohibits the forcible transfer of civilian populations — not voluntary settlements on unoccupied land which sits in no sovereign domain.”

    This is a grotesque misreading of the text of Article 49 of the Fourth Geneva Convention, which (in its first clause) specifically bans forcible transfers of the civilian population OUT of the occupied territory, but (in an entirely separate final clause) bans ALL transfers of the occupiers’ own civilian population INTO that territory, whether or not they are forcible. This is confirmed by the official commentary on the Conventions, which sets out the reason for the ban on civilian settlement as to prevent the occupier from worsening the position of the native population by moving their own civilians there for the purposes of colonization or for broader political reasons. The commentary explicitly distinguishes this case from the type of forcible transfer set out in the first clause. The one similarity is that both are about protecting the native population, not about protecting the civilian population of the occupiers. It is irrelevant to the interests of the native population how the occupying civilians get there: the main thing is that they should not be there at all.

    I cannot imagine how you came up with such a bizarre reading of the text, but it is frankly a ludicrous one, and one that has absolutely no support in any legal account of the Geneva Conventions that I have ever seen, and is contradicted by every international judgment concerning the application of Article 49.

    As for your long history of the prior ownership of the land, it is true that Jordan had no legal claim to it, but that is irrelevant, since none of the events prior to the establishment of the state give Israel any legal claim either – at least, no claim that anyone else in the world or any legal authority recognizes. Israel did not exist in 1922, and Israel is not the legal successor state to the entire Palestine Mandate; it was founded on part of it only, and the rest was designated for an Arab state, which overrode earlier designations of a Jewish state within Palestine.

    It is true that that Arab state never came into existence, but that does not mean that Israel magically comes into possession of the whole by default. I am not aware of any country or legal authority which accepts this idea of yours: indeed, I’m not even aware that it is a claim made officially by Israel herself. I should also point out that it is compatible with neither the “missing reversioner” theory (which HAS been publicly accepted by Israel, though it has little legal validity, as I earlier noted), nor with your first suggestion that Israel legally acquired the land in a defensive war (itself of no validity).

    Indeed, it is not even compatible with Israel’s own actions since 1967. Israel has annexed and extended Israeli law over the Golan (most which was never part of the Palestine mandate, and so the argument above offers no justification for it even on the most generous reading). Yet Israel has not extended Israeli law over any of the West Bank apart from East Jerusalem. Hence even she does not treat this as if it were simply Israeli territory that she liberated from Jordanian occupation: and that alone would weigh heavily against the acceptance of the Israeli case in the unlikely event that she was foolish enough to base her legal claims on this argument.

    Instead of constantly engaging in fantasy law of this sort, can I suggest that you start from the real law of occupation and conquest as it has been interpreted by real international lawyers over the last sixty years; then you should look at the real opinions about their applicability to Israel and the West Bank, including the opinions and judgments expressed in those real international forums whose rulings carry real legal force. And then deal with the consequences.

  23. I think the problem is simply you don’t like people who disagree with your highly selective reading of law books and your politically motivated arguments. I notice you’ve backed off of Western Sahara–and ignored Cyprus, Tibet and a slew of other such cases…..but then, so has the rest of the world.

    Your argument about the Geneva Convention leaps right over the first part–whether or not it applies to the West Bank at all. There is no High Contracting Party involved on the Arab side of the equation, so it is highly dubious that it applies legally. The ex post facto application of the Convention in 1999 is both illegal and irrelevant, the former as a matter of law and the latter because it was politically motivated and no such ex post facto application was made anywhere else in the world. (Arab oil money buys votes again….)

    As for the “transfer” question, the word itself connotes ‘forcibly’ and is, given the equivalent of the legislative history, in the context of mass forcible movements of populations by governments into territories formerly belonging to a recognized sovereign. Neither prerequisite exists here. Your application of it is absurd—telling the Jews who lived in the Old City of Jerusalem that they cannot return to their homes from which they were expelled by the Jordanians in 1948 because that is a “population transfer?” Telling a farmer who owned his farm in Kfar Etzion, Kfar Darom or Atarot that he can’t move back there otherwise he’s in violation of the Geneva Convention. Don’t be ridiculous.

    “none of the events prior to the establishment of the state give Israel any legal claim either” — that is simply legally incorrect. Israel is the successor to the Jewish National Home based on the League’s ratification in 1922 — and the UN’s subsequent agreement to incorporate such prior holdings into its Convention. If this were a quiet title action, then Israel has the far better claim legally than the Palestinians, who rejected the UN Partition.

    “[Israel] was founded on part of [the Mandate land] only, and the rest was designated for an Arab state, which overrode earlier designations of a Jewish state within Palestine.” It WOULD have overriden earlier designations had it been accepted by the Arabs — contracts are offer AND acceptance. Arab rejection of the Partition then and repeatedly since then has voided any legal claim at this point.

    “the Golan (most which was never part of the Palestine mandate” — this is also untrue. Please get a map showing the bounderies of the original Palestine Mandate prior to 1923 when the colonial powers decided to rewrite it in order to guarantee the British oil in Mosul.

    I’m tempted to overlook your condescending final paragraph, but I simply can’t pass up temptation : not everyone who agrees with you is “real” and valid, and not everyone who disagrees with you is someone to scorn. The “marketplace of ideas” is both the source of civil discourse in democratic society and on university campuses. Unfortunately, too many of you on the Left feel that your opinions are the only ‘valid’ opinions.

  24. @aliyah06: “There is no High Contracting Party involved on the Arab side of the equation, so it is highly dubious that [the 4. GC] applies legally.”

    Why do I have the distinct impression you couldn’t even be bothered to read the document? It’s easily found on the web.

    http://www.unhchr.ch/html/menu3/b/92.htm

    Article 2
    (…)
    “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

    Now, the argument that the GC doesn’t apply because the non-state actors on the Palestinian side are alleged to not accept and apply the GC’s provisions is new to me. In particular that would require Israel to recognise e.g. the PLO as representing the Palestinians (the GC does not bind private individuals), a recognition that was utterly absent before Oslo.

    I’m at a loss what you mean by the “ex post facto application of the Convention in 1999”.

    As for “transfer”, I suggest reading article 49.
    “Individual or mass forcible transfers…”
    The word “forcible” is there for a reason, which is that it’s not redundant.
    “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
    The word here that implies “forcible” is not “transfer” as you claim, but “deport”. Both voluntary (transfer) and involuntary (deportation) “transfer” are prohibited.

  25. “Your argument about the Geneva Convention leaps right over the first part–whether or not it applies to the West Bank at all.” No: I leapt over nothing. I merely took you at your word when you said “assuming arguendo that it even applies to the disputed territories” and argued the case on that basis. I suppose that I should not be surprised that you yet AGAIN have changed the terms of discussion, and now aren’t prepared to make that assumption.

    On this question, Fiddler has given an excellent if partial answer about “forcible transfers”; the other part of the answer would be to note that your account is incompatible with the meaning of Article 49 as set out in the official commentary, which I discussed in some detail in my earlier post but which you seem to have ignored. On the broader point, the first clause of Article 2 shows that the Convention covers all cases when territory is occupied during a war between two Contracting Powers (in this case Israel and Jordan, who were certainly at war in 1967); it does not require that the territory in question be the legal property of one or other of them. It is true that Israel does not accept this interpretation, but her arguments are themselves not accepted by the main stream of international law (see, for example, the careful discussion in the Mallisons’ book which I cited earlier), and has been rejected by all authoritative bodies that have ruled on the matter, including the International Committee of the Red Cross and the International Court of Justice.

    ““the Golan (most which was never part of the Palestine mandate” — this is also untrue. Please get a map showing the bounderies of the original Palestine Mandate prior to 1923”

    The following is the Israeli government’s own map of the Palestine Mandate as it existed in 1920:

    http://www.mfa.gov.il/MFA/Facts%20About%20Israel/Israel%20in%20Maps/The%20League%20of%20Nations%20Mandate%20for%20Palestine%20-%201920

    For a more detailed view, see http://en.wikipedia.org/wiki/Image:GolanHistoricalBorders.svg. As you can see, only the western part of the Golan was ever included in the Palestine mandate. The rest, the bulk of the territory which Israel captured in 1967 and subsequently extended Israeli law over, never formed part of the Palestine mandate at all.

    As for the rest, I will simply note that you have merely reiterated your argument about Israel being the legal inheritor of the entire Palestine Mandate. That argument, as I observed earlier, is accepted by no relevant party: indeed, it is not even accepted by Israel herself, judging by her official statements and actions.

    That is why I referred to your engaging in “fantasy law”. The problem is not that my account is “selective”, still less is it that you are disagreeing with me. The arguments that I have presented draw on (and sometimes cite directly) the rulings, arguments, and interpretations of mainstream international law (at least on my reading), the law that has formed the basis for the rulings of authoritative legal bodies on questions relating to Israel and Palestine and as set out in standard legal discussions of the subject. You on the other hand have cited no legal rulings or official interpretations, your arguments appear to be largely of your own devising, they have not been consistent with one another, and some of them are not accepted by Israel herself.

    If you think that I have misrepresented the mainstream of international law, the answer is not to attempt to devise more arguments. The answer is to show how the arguments you are putting forward are themselves mainstream, for example through having formed the basis for official legal rulings and judgments on Israel and Palestine, or at least through being accepted in some of the standard books on international law. In the absence of that, I’m afraid that the inevitable conclusion is that you have no case to offer.

  26. Yes, it’s on the web. Yes, I have read it.

    “In particular that would require Israel to recognise e.g. the PLO as representing the Palestinians (the GC does not bind private individuals), a recognition that was utterly absent before Oslo” — No, it required that the Palestininans abide by the UN resolution creating a Palestinian state in 1948. They didn’t.

    Both “transfer” and “deport” meant State actions, not voluntary individual actions or land purchases.

    I think we’ve argued this to death. You have your interpretation of this, and I am not going to convince you that you’re interpretation is anything other than gospel.

    I am a pragmatist, and I think peace is not determined by borders but by agreements that all the pertinent parties (the Israelis and Palestinians, not you guys in Europe) can live with. It is not helpful to ending the conflict to keep insisting on preconditions for either side (“1948 ‘borders’ or ‘ending terror’), so instead of constantly stirring the pot by ranting about ‘occupation’ maybe you should devote your energies to encouraging dialogue and a peaceful solution to a situation far more complex than you allow.

  27. aliyah06, may I remind you it was you who started stirring the pot, or the kettle, if you want, of occupation or not occupation in this thread.

    I agree that the pertinent parties should have the say about what they want and can live with, but as they both are apparently unable to come to an agreement, “we guys” abroad won’t shut up.

    Of course the question how to legally label Israel’s presence in the WB, East J’lem, and the Golan, and it’s control of Gaza is not the be-all and end-all of the conflict, although important enough.
    Perhaps you might want to consider that those who talk of occupation implicitly support a two-state solution, at least an intermediary one, while your claim of all the land implies one state. The options for the latter are
    – a liberal democracy
    – Bantustans
    – boxcars
    – bribing the Palestinians to leave voluntarily
    So which one is it?

  28. Fiddler – claiming right to all of the land does not necessarily imply either of those things.

    First, a liberal democracy will definitely be the entity that would emerge from granting voting rights to all residents between the river and the sea.

    There is a big difference between asserting Israel’s right to the area and maintaining that Israel should maintain control over the entire area. One can (and some do) assert Israel’s right to the area (not from a religious standpoint), and at the same time understand that the current situation requires a solution in which Israel would cede territory that it rightfully claims. This, in the interest of remaining a democracy in light of demographic changes.

    In other words , yes, the territory belongs to Israel. However, Israel will probably have to, at some point, cede territory for the formation of another entity.

    Boxcars? I’m sorry but I don’t understand your reference, I really hope you’re not implying genocide.

  29. LB, by the “boxcars” metaphor I don’t mean literal genocide, but another campaign of ethnic cleansing, a second naqba.
    I seem to remember a statement from Ben-Gurion (which I can’t find right now) where he said that such wasn’t necessary, even explicitly referring to railroad cars. Obviously, by 1948 he had come to disagree with himself.

    As for “the territory belongs to Israel”, see the discussion above, no need to reiterate.

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