In this centenary year of the seminal Balfour Declaration, myriad myths abound regarding the legality of the State of Israel and the illegality of building and living in Judea and Samaria, erroneously (but conveniently) labelled the West Bank.
On March 10, 2017, Miriam Elman pithily summarized the proceedings of a talk given by Professor Eugene Kontorovich at the Syracuse University’s Institute for National Security and Counterterrorism (INSCT) on the 28th of February 2017.
Professor Kontorovich’s thesis is as clear as it is simple: Jews have a legal right to live and make their homes on Arab-infiltrated lands in Judea and Samaria, erroneously labelled the West Bank by Israel’s detractors.
The most common almost meme-like point of view of those who would detract from Israel is that Judea and Samaria are “occupied territory”. This viewpoint is supported, according to the detractors, by their interpretation of Article 42 of the 1907 Hague Regulations where representatives of the ICRC and other anti-Israel organisations interpret the Article to mean that “international humanitarian law does not require that the territory occupied by a foreign army must belong to a sovereign state.”
While Kontorovich does not address this point specifically in this lecture, others question that interpretation because Article 42 of the Regulation is filed under a category titled, “Military Authority Over the Territory of the Hostile State.”
There is little more that can be added to amplify that statement…………
On the other hand, Professor Kontorovich explicates clearly why others who use the much abused interpretation of Article 49, Clauses 1 and (especially) 6 of the Fourth Geneva Convention to delegitimize Israeli presence in Judea and Samaria are flogging a dead horse:
the Fourth Geneva Convention’s Article 49(6) [is]… a set of injunctions on the occupier, and was explicitly meant to prevent the kinds of deplorable forcible deportations and mass transfers of peoples perpetrated by Nazi Germany during World War II.
[Nowhere does] Article 49(6)…say that civilians can’t voluntarily move to live in occupied territory. Nor does it require occupying powers to make it difficult or burdensome for civilians to reside in these territories.
With regard to the West Bank, a sizeable portion of Jewish Israelis who live there today didn’t move into the area, much less were they transferred there by Israel—they were born there! And these settler babies and kids aren’t there illegally.
[Thus], Article 49(6) doesn’t create a “no-go zone” for the nationals of the occupying power who wish to migrate into the occupied territory. Israel has indicated a willingness to trade away some of this territory as part of a negotiated agreement—having rights and title to territory doesn’t mean a state can’t waive them. But until that day comes, nothing in the Geneva Conventions makes it unlawful for Israeli citizens to voluntarily settle in a territory with no other legal sovereign.
Article 49 of the Fourth Geneva Convention, states that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The terms “deport” and “transfer” are active, meaning that civilians are not acting on their own behest (Shamir, 2013).
Further, the decision to draft the Geneva Conventions of 1949 was spurred by the tragedy of World War II. The conventions were intended to fill the gaps in international humanitarian law exposed by that conflict.
Specifically, the article relevant to this discussion was drawn up in the wake of the Nazi policy of forcibly transferring parts of its own population into territories it occupied before and during the war. The most infamous of these forcible transfers or deportations was the masses of Jews who were sent to occupied territories to be murdered en masse in Poland and elsewhere.
Unsurprisingly, with regard to forced deportations and transfers, no mention is ever made by those same sjws about Israeli “occupation” of the 19-year illegal Jordanian invasion and occupation of the “West Bank”, where for the first time in 3000 years, Jews were ethnically cleansed from East Jerusalem adn herded out from Hebron, while Muslim Jordanian nationals were imported into the occupied territory of the State of Israel to create facts on the ground.
To conclude, perhaps the most major reason there is no state of “Palestine” today is that there is no legal precedence justifying its re-creation.
By this I mean that documented Arab refusal to have an additional state (now three) out of what was one originally designated area for the reconconstituting of a national home for Jews in what is today Jordan, Judea and Samaria and the State of Israel was corrupted and hijacked both by Arab corruption of the brief and intention of the League of Nations in creating the British Mandate, and the greed of Britain which refused to reduce its influence from near the sources of oil in Iraq and Saudi Arabia.
Empowered as it was by the League of Nations in 1922, it is Article 6 of the (lawful) British Mandate which encouraged “close settlement” by Jews in the area and the League of Nations’ Mandatory borders which are binding in international law (Kontorvich 2017).
By the end of 1947, opportunity was given by the vacating British to both Jew and Arab to initiate statehood. The Jews declared the State of Israel in May 1948. The Arabs declared war.
Thus, all else is merely subterfuge and frustration, economic blackmail and threat of violence, as well as a final resort to legal warfare because the Arab League failed, in three wars, to wipe out by force of arms, a tiny enclave of Jews who now had both moral AND legal claim to a Jewish state. In international law.
There is a reason there is no “Palestine” today.
The 100 year Arab-Israeli conflict is just that: Arab-Israeli. The red herring of “Palestine” is merely a red herring; a fiction pursued by Arabs and their funded western enablers to create an ethnically cleansed Middle East.
But that is a different story altogether.