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Posts Tagged ‘EXERCISE’

US Agrees, Settlements are “Not Illegal”

Thursday, July 12th, 2012

http://www.israpundit.com/archives/47484

The  legal tsunami gathering strength in Israel will soon engulf the world. A report is soon to be released that says, the Fourth Geneva Convention (FGC) does not apply to Judea and Samaria aka West Bank and that Israel has every right to build settlements there.

In January of this year,  PM Netanyahu set up the Levy Committee to investigate the legal status of unauthorized  West Bank  Jewish building. The Committee was headed by Supreme Court Justice (ret) Edmund Levy. It included Tel Aviv District Court Judge (Ret.) Tehiya Shapira and Dr. Alan Baker an international law expert, who was part of the team that devised the Oslo Accords.

The Committee reviewed legal briefs from right of center groups but also from far left  groups such as Peace Now, Yesh Din and Btselem. Its 89 page Report was submitted to PM Netanyahu a few weeks ago and is now under review by his Ministerial Committee on Settlements. Though the Report has yet to be formerly published, the contents are already well known.

It found that the settlements are not illegal. To reach this conclusion it first found that the Fourth Geneva Convention which applies “to all cases of partial or total occupation of the territory of a High Contracting Party” does not apply to Judea and Samaria because “Israel does not meet the criteria of ‘military occupation’ as defined under international law” … as  “no other legal entity has ever had its sovereignty over the area cemented under international law.”

Furthermore it found that there was no provision in international law which prohibited Jews settling in the area.

The UN and the EU have for decades repeated the mantra that the land is occupied and the settlements are illegal, both pursuant to the FGC but there has never been a binding legal decision on which they based their assertions. The US has been more cautious and considers the settlements “an obstacle to peace” or “illegitimate.” Nevertheless, it leads the chorus in demanding an end to Israel’s settlement construction.

In 2010, Nicholas Rostow  wrote in the American Interest regarding the legality of the settlements:

      “On February 2, 1981, President Reagan stated that the settlements were “not illegal,” although he criticized them as “ill-advised” and “unnecessarily provocative.” Throughout the Reagan Administration the U.S. government did not question the legality of the settlements; rather, it criticized the settlements on policy grounds as an obstacle to the peace process. In the United Nations, the United States voted against resolutions describing Israeli settlements as illegal.”

President George Bush followed suit and so did President Obama.

The Levy Report confirms the opinions of a large list of experts who have long claimed the same, including:

  • Stephen M. Schwebel, Professor of International Law at the School of Advanced International Studies of The Johns Hopkins University (Washington), former Deputy Legal Advisor of the U.S. State Department and President of the International Court of Justice from 1997 to 2000:“Where the prior holder of territory [Jordan] had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense [Israel] has, against that prior holder, better title.”
  • Eugene W. Rostow, Former U.S. Undersecretary of State for Political Affairs and Distinguished Fellow at the U.S. Institute for Peace:“The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created… The Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated…”
  • Julius Stone, one of the 20th century leading authorities on the Law of Nations, Doctor of Juridical Science from Harvard and Professor of Jurisprudence and International Law at universities in Australia and California:“The terms of Article 49(6) [of the Fourth Geneva Convention] however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever ‘judenrein’.”
  • David Matas, world-renowned human rights lawyer and honorary counsel to B’nai Brith Canada:“For there to be an occupation at international law, there has to be an occupying and occupied power both of which are members of the community of nations. The only conceivable occupied power for the West Bank is Jordan. Yet Jordan has renounced all claims over the West Bank.”
  • David M. Phillips, Professor at Northeastern University School of Law:Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is “Arab” land. Followed to its logical conclusion – as some have done – this narrative precludes the legitimacy of Israel itself…The ultimate end of the illicit effort to use international law to delegitimize the settlements is clear – it is the same argument used by Israel’s enemies to delegitimize the Jewish state entirely.”
  • Jeffrey S. Helmreich, author and writer for the Jerusalem Center for Public Affairs:“The settlements are not located in ‘occupied territory.’ The last binding international legal instrument which divided the territory in the region of Israel, the West Bank, and Gaza was the League of Nations Mandate, which explicitly recognized the right of Jewish settlement in all territory allocated to the Jewish national home in the context of the British Mandate. These rights under the British Mandate were preserved by the successor organization to the League of Nations, the United Nations, under Article 80 of the UN Charter.”

The question of the applicability of the FGC was considered by the International Court of Justice (IJC), an arm of the UN, in its advisory opinion on the legality of the fence.

The IJC held that “the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.”  In other words it ignored that the lands occupied must be the lands of “another High Contracting Party.”  This is not considered sound law and in any event, is not a binding decision.

The Supreme Court of Israel in its decision approving the fence as legal,  said  that “the question of the application of the Fourth Geneva Convention is not before us now since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review.”  Thus it didn’t decide on the applicability.

The Left in Israel are screaming blue murder and referring to the Report as “born in sin” and a “political manifesto.”

On Monday, while speaking to reporters, State Department spokesman Patrick Ventrell said:

    “The US position on settlements is clear. Obviously, we’ve seen the reports that an Israeli government appointed panel has recommended legalizing dozens of Israeli settlements in the West Bank, but we do not accept the legitimacy of continued Israeli settlement activity, and we oppose any effort to legalize settlement outposts.”

What is interesting about this statement is that Ventrell did not comment on the finding that the FGC did not apply or that the settlements were not illegal.  He merely reiterated the US government position without substantiating it. Furthermore, the settlement outposts that the State Department doesn’t want “legalized” are legal, save for having not received their final approval from the Government of Israel. If they were really illegal by international law, Israel wouldn’t be able to “legalize” them. Put another way, the US position is that Israel shouldn’t exercise her rights because such exercise would be an obstacle to peace. It prefers to recognize the non-existing Arab rights rather than the real rights of the Jews/Israel.

Accordingly, the legal conclusions of the Report are sound.  What will the fallout be?

Well for starters, the UN may ask for another advisory opinion from the ICJ on the validity of this report but why bother, it already has one on the applicability of the FGC. It probably will choose to ignore it as just another opinion. Meanwhile the existence of the report will take the wind out of the sails of the US and the EU as they try to damn the settlements and Israeli actions. The US will have to acknowledge that since President Reagan, it has considered the settlements to be “not illegal” but only, ”ill-advised.”

PM Netanyahu will have to decide whether he will embrace the Report and act accordingly or whether he will wait for the issue to be adjudicated by Israel’s High Court. It is highly unlikely that this Court will fly in the face of the named experts, the US Government and the Levy Report. The Court has previously held that the settlements were legal.

From a political point of view, he cannot ignore the Report.  A political storm is raging. Likud MK Tzippi Hotovely is preparing a Bill that will “endorse the principles of the Levy Report and will require the establishment of a judicial tribunal in Judea and Samaria which will be given the responsibility of discussing matters related to land ownership, the establishment of an Israeli land registry in Judea and Samaria and applying Israeli building and planning laws on Judea and Samaria.”

Where does that leave the international community?  The foundation of their attacks on Israel will have been destroyed. It will be hard to ignore the Report and harder still to ignore a confirming decision by Israel’s High Court. It will no longer be able to claim with a straight face that the lands are “occupied Palestinian lands” or that the settlements are illegal.

Congress will no doubt strongly endorse the Report with or without a decision of the Supreme Court of Israel.

The upshot of all this will be that Israel will end the de facto building freeze and start construction of settlements in earnest. It will also signal the end of the pursuit by Israel of the two-state solution. The Israeli center will no longer believe that Israel is an occupier and instead will believe that the land is theirs, which it is.

Presently there is a significant movement in Israel advocating Israeli sovereignty over all of Judea and Samaria, even if that means making citizenship available to qualifying Arabs.

Israel must decide between two risky alternatives; either accept the two-state solution based on ’67 lines with swaps or annex the land and contend with an extra 1.5 million Arabs within its borders. With the latter alternative, the Jews would be left with a stable 2:1 majority. Israelis are already trending to the latter and this Report will accelerate that trend.

The Arabs in Judea and Samaria will not accept such a two state solution because it will preclude the “right of return” and will require them to recognize Israel as the Jewish State. Furthermore it will require them to sign an end-of-conflict agreement which they will never do. If Israel chooses to claim sovereignty, the Arabs will have to decide whether to push for citizenship or to accept autonomy.

This tsunami will change the political landscape for the better and forever.

J.E. Dyer: Tumultus Post-Americanus

Tuesday, July 10th, 2012

You’d think they could wait until America has decided if we really intend to be post-American.  I mean, what’s President Obama going to do about Iran and Syria – get Qatar to bomb them?  Does that really require a regional-war-scale response from Russia?  And what about the South China Sea?  It’s not like our new Marine contingent in Australia can do anything about China’s strong-arming of the other nations there.  Nor does there seem to be much likelihood that we will react to Russia’s chest-thumping in the disputed Kuril Islands north of Japan.  And when I say “react,” I mean “react at all.”  For all the president’s new focus on the Pacific, we don’t seem to have any positions we intend to actually enunciate there, much less defend.

The Tumultus Post-Americanus is now well underway.  The US and NATO, and our Pacific allies Japan, South Korea, Australia, Thailand, and the Philippines, have tremendous latent power, but the American leadership to focus this power for strategic purposes has gone missing.  There is no initiative on our collective part – we have done nothing but react in the last three years – and possibly even less appreciation of how the world is changing.  The forms of international discourse – the processes of the UN, the G-8 and G-20, the IMF – are being adhered to now because they are a convenience, not because they produce anything useful.  They are brittle relics of a peace that no longer has a core and is waiting to be breached by regional initiative.

Hiatus, for now

My sense today is that nothing is about to “break.”  I believe those who sense otherwise misread the dynamics of the current situation.  There is no unified actor – either a nation or a movement; e.g., Islamism – in a position today to prosecute an abruptly transformative, offensive campaign on the model of predatory Marxist-Leninism or the outright-conquest methods of Adolf Hitler.  The nations of today all know this – even Iran’s mullahs.

Russia and China are both acting under the compulsions of their traditional geopolitical motives; as important as American power is in their calculations, they are at least as concerned about each other.  They cannot escape their neighborhood.  Right now, Russia’s actions are, to the Russian mind, wholly defensive.  China hopes to enlarge her base of invulnerable power by controlling the sea- and tradeways around her perimeter, and staking out power outposts in Central and South Asia and Africa.  China sees a watershed opportunity; Russia sees a loss of stasis and a rise of Islamism, and seeks to prepare for whatever that’s going to do to her, in part by reclaiming territory she feels vulnerable and disrespected without (e.g., Georgia).

The decisive factor for political Islam – Islam focused through the lens of ideology on politics and the nation-state – is still its internal competition.  Saudi Arabia and Iran have led separate factions for decades.  But now an economically and militarily resurgent Turkey is seeking to put her own stamp on Islamist geopolitical leadership.  And Egypt – a very large, populous, and educated nation, long held in a neutral stance by Mubarak’s effectively secular regime – appears to have entered the sweepstakes with the election of Mohammed Morsi.  Some Western pundits are waiting for the Egyptian military to drop the hammer on Morsi, but I am not sanguine about that possibility.  Erdogan’s Turkey, where the traditionally moderating political power of the military has been broken in the last 3-4 years, looms as an example to the region.  It will take some time, as it has in Turkey, but Egypt will probably emerge as a nation-state competitor to Turkey, and she is likely to do it by emulating Erdogan’s methods.

The Muslim Brotherhood itself is boresighted on Jerusalem, but the path to that “victory” remains uncertain.  Egypt, for all her geographic advantages, may not be the most obvious launching pad.  Syria, which has been in Iran’s orbit for a long time, is a great strategic prize in the race to Jerusalem, both geographically and politically.  Most political happenings in the Middle East right now are centered on the jockeying process for leadership of the Islamist geopolitical movement.

No one in this mix is ready right now for the fading global stasis to entirely fall apart.  It serves their interests for the stasis to continue and hold their competitors in check.  But within the constraints of the old stasis, they – especially Russia and China, but also India, Iran, and other affected nations – are making military preparations.

Printed from: http://www.jewishpress.com/indepth/analysis/j-e-dyer/j-e-dyer-tumultus-post-americanus/2012/07/10/

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