This article is a synthesis of the intellectual property of Ruth Lapidoth, Talia Einhorn, Howard Grief and Nadav Shragai.
There is a widespread perception, perceived mainly by the non-literati that the creation of the State of Israel is illegal and that the State of Israel has invaded and occupied sovereign territory of a victimised Palestinian people.
Not only that, but the State of Israel has effected mass population transfer by allegedly driving out 700,000 Arabs on the one hand, and continuing to populate that invaded territory of Palestine with settlements of Jewish settlers on the other. Further, this shows flagrant disregard of Article 49 of the Geneva Convention which states unequivocally:
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”
Moreover, the vast majority of non-resident, civic-minded commentators on the continued Arab-Israeli conflict between Israel and the Arabs in Gaza and Judea and Samaria, will also refer the reader to the inalienable right of return of displaced Palestinian nationals as ensconced in Article 11 of UNGA Resolution 194 of 11th December 1948.
This resolution, implemented retroactively after the defeat of seven Arab armies by a tiny nascent state of Jews, and 7 months after Israel declared independence in May 1948, stated quite clearly that “…refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so..…”
For many of the supporters of a Palestinian state, the intentions of both Article 49 and Resolution 194 couldn’t be clearer: Palestinians have been driven out of their rightful homeland of Palestine by a colonising, invading force of Jews who have occupied traditional territory of an indigenous Muslim population, and are denying Palestinians a right to exist in peace and safety within defensible borders.
The facts, of course are quite different. And worryingly for some perhaps, those historical facts will never change.
The oft-quoted (but much mis-contextualised) Fourth Geneva Convention on the Rules of War was adopted in 1949 in response to Nazi atrocities in WWII. It was in response to atrocities in Europe where more Jews were slaughtered per day than all Arab deaths against Israel in war since 1945….
It took 50 years of Arab economic pressure, kickbacks and preferential access to oil to finally corrupt an originally altruistic body in the UN.
In 1999, the UN now concurred that the Fourth Geneva Convention written in response to Nazi aggression did indeed apply to Israel. The intention here is to draw a parallel between 1930s Europe where over 60 million humans, or 3% of the 1940 world population, were killed, and Muslim Arabs killed in ethnoreligiously based racial wars of aggression against a Jewish state because of their religion.
Not only that, but the territory in Judea and Samaria that the Jews gained in repulsing attacks of Arab aggression initiated by 5 Arab Muslim armies were now deemed to be “occupied territories”.
That is to say, the defeated Arab Muslim armies now invoked a Doctrine of Limited Liability. Under this Doctrine, an aggressor may reject a compromise settlement and gamble on war to win everything in the comfortable knowledge that, even if he fails, he may insist on reinstating the status quo ante.
So convinced were the Arabs of the infallibility of this Doctrine that they applied it not once, but twice; in 1967 and 1973.
Unfortunately, stubborn legal facts remained a fly in the doctrinal ointment.
After the Arab armies were embarrassed once again in the Six Day War, the Arab League began to realise that what they couldn’t get through violence, they could possibly recover through economic sanctions, bribery and subversion of international law. Revisionism became the order of the day. That revisionism however, could not trump international law.
Until 1948, the West Bank and Gaza were all part of British Mandate territory. In the War of Independence, Egypt invaded and occupied (in violation of international law) the Gaza Strip, while Jordan invaded and occupied the West Bank.
To this day, Egypt has not claimed title to the Gaza Strip. Jordan, on the other hand, purported to annex the West Bank in 1950, but the annexation was not recognized in international law. Only Great Britain (subject to a reservation regarding East Jerusalem) and Pakistan recognized the annexation attempt, which was also opposed vehemently by all Arab states.
In May 1950, Egypt, joined by Syria, Saudi Arabia and Lebanon, demanded the expulsion of Jordan from the Arab League on these grounds!! Eventually, a compromise was reached when the Arab League declared that Jordan was holding the territory as a “trustee.”
Sixty seven years later, it is still unclear under what international law they were acting. But, operating on the principle that “possession is 9/10ths of the law, Jordan occupied and colonized Judea and Samaria and East Jerusalem until 1967.
In 1967, following the Six-Day War, the territories, which had originally been designated as part of the Jewish national home according to the Mandate document, reverted to Israeli control. Prominent international jurists opined that Israel was in lawful control of those territories, that no other state could show better title than Israel, and that these territories were not “occupied” in international law. Indeed, Israel was entitled to declare that it had applied its sovereignty in the originally mandated territories.
In effect, because of political and other considerations, Israel applied its sovereignty only to East Jerusalem and the Old City.
Territories recovered such as large parts of the south and the Negev, as well as the Jerusalem Corridor, Acre, Nazareth, Jaffa, Lod, Ramle, Ashdod, Ashkelon, Beer Sheva and West Jerusalem came under Israeli jurisdiction as originally designated for the State of Israel by the United Nations Partition Resolution of 29 November 1947.
Thus, Israel’s guiding perception in 1967 did not change one iota since its establishment in 1948: territories that were part of the (internationally legal) Mandate for Palestine prior to 1948, were never “annexed” since Israel was not “occupying “ its own legally granted territory.
With regard to Judea and Samaria, Israel’s official position designates the area as “disputed territories” to which Israel has a priority claim of right in international law as victims of unprovoked aggression by hostile states. This is especially the case in international law since Judea and Samaria were not taken from any other sovereign state. Thus, the Hague Regulations 1899/1907 and the Fourth Geneva Convention did not apply to them.
For the Arab world, which until then had never bothered itself with international law, but, had, till then, a rather cavalier attitude to land aggrandizement, such a ruling saw an outburst of fury that continues till today.
To further put paid to the Arab reliance on the Doctrine of Limited Liability, Arab frustration with international law rose even higher when they realized Israel’s legal position regarding the non-applicability of the Hague Regulations.
The Hague Regulations, first enacted in 1899 and later updated and amended in 1907 were designed to safeguard the interests of the states that were contracting parties to the Hague Convention.
Since Jordan’s invasion of East Jerusalem and the West Bank in 1948 and its annexation in 1950 never ever gained international recognition, and since Jordan’s occupation was achieved by illegal use of force, not in self-defense, i.e., in contravention of international law, Jordan was not a legitimate sovereign power in that territory.
Consequently, because the Regulations concerning occupied territories (Regulations 42-56) apply, according to the text of the Convention, to territories seized from a legitimate sovereign, Israel’s position that the provisions of the Hague Regulations do not apply to the West Bank has been a source of frustration for the Arab world which believes in a Jew-free Middle East.
After yet another unsuccessful attempt to destroy the Jewish state in 1973, realization finally dawned that if they could achieve the destruction of the Jewish state through force, they would usë historical revisionism, the world’s dependency on Arab oil as well as economic boycotts (much like 1930s Germany) and the use of patently self-serving interpretations of international law to achieve that same end.
Thus was born the myth of the oppressed “Palestinian” ”nation”(there was never a “Palestinian nation before the mid 1960s….). This was expanded into the lie of occupation” and a narrative of “resistance”. This despite the legal facts that in international law “occupied territories” are territories under “belligerent occupation.” However, where the parties – in the present case Israel, Jordan and Egypt – are no longer belligerent, the question arises of how those territories can continue to be considered subject to “belligerent occupation” following the peace agreements with Jordan and Egypt.
International law has not given Arab nationalists in the 67 year Arab-Israeli conflict much room for revisionism. This, as an occupying and colonizing presence in the Middle East, they cannot forgive.
In effect, it took from 1967 to December 2014 for the majority of signatories to the Fourth Geneva Convention to submit to Arab bloc pressure to state that a 1949 ruling first penned in 1864 was now applicable to Israeli interests in its homeland because the Arab reliance on the Doctrine of Limited Liability and genocidally intentioned aggression had failed them.
There is a reason there is still no “Palestine” 67 years after they were given a huge territory for that purpose east of the River Jordan in 1948.
The Fourth Geneva Convention will never supply Israeli Arabs with a Palestinian state because firstly, the sovereignty of an Arab Muslim Palestinian state has never been legally established and secondly, as a non-state, Israeli Arabs can not even claim “belligerent occupation” by an occupying state as explained above.
Israel has consistently maintained its position of land for peace. Some 67 years after the Arabs were given Transjordan as an Arab Muslim homeland east of the River Jordan and Jews were given the territory west of that divide, a supremacist, war-prone ideology would still like to bend international law to its will. Current developments and the continuing mayhem in the Middle East only reinforce that evaluation.
It is quite appropriate then, that Ehud Barak’s apt description of democratic, law-abiding Israel as a “villa in the jungle” takes on a continuing resonance.