Sunday, December 25, 2016

Streamlining The Analysis of Walter Rostow On The Legality Of The Settlements

I've done this to try to get at the essence of Rostow's analysis for my own benefit and for such convenience as it has for you.  

In 2 parts 



1500 -- 1917 Palestine "P" part of Ottoman Empire.

After 1917 under British Mandate

On July 24, 1922, the League of Nations Council confirmed the Mandate.

The Mandate explicit that the Mandatory Power responsible effecting Balfour Declaration in favor of a Jewish national home in Palestine.

The Balfour Declaration, the Mandate, and League of Nations incorporation  formed part of the same international law that self-determination is a right. 

The Mandate espoused the facilitation of Jewish immigration encouraged Jewish settlement: "it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”

In 1922 ratified in 1923 the League of Nations gave Britain the Mandate to administer Palestine, which required her to implement the Balfour Declaration, and undertake a “sacred trust of civilisation” to advance the welfare of the Palestinian people and guide them to independence

Article 80 of the UN Charter, known in 1945 as the “Palestine” Article, carried this body of international law forward to the UN Charter era.

In 1947, Britain asked the UN to consider the question of a future government in Palestine in light of Britain’s determination to withdraw as Mandatory Power in 1948

On November 29, 1947, UN GA passed Resolution 181 (II), which recommended to the Mandatory Power and to the Security Council the adoption of a partition plan for the remaining area of the Mandate (west of the Jordan River)...

Common perceptions notwithstanding, General Assembly Resolution 181 (II) was not and is not legally binding, both because of its language—it is recommendatory only—and because of the limited powers of the General Assembly under the UN Charter.

In 1949, Israel concluded armistice agreements with Syria, Egypt and Jordan. These agreements included as a common provision that the Armistice Demarcation Lines were agreed “without prejudice to future territorial settlements or boundary lines or claims related thereto.”

Since 1949, despite several wars, UN resolutions, and endless argument about the relative merits of claims to the lands of the Mandate, the status of the West Bank, Gaza and Jerusalem has never been resolved finally as a legal matter.

UN Security Council Resolutions 242 (November 22, 1967) and 338 (October 22, 1973) together constitute an authoritative UN decision on the principles to frame an Arab-Israeli peace settlement and remain the most important agreed framework for Arab-Israeli peace.

These resolutions reflect two facts, on the mind of governments of the day. The first, the Six-Day War of June 1967 was, for Israel, a lawful exercise of the inherent right of self-defense recognized in Article 51 of the UN Charter. 

As a result, Israel’s occupation of territory beyond the Armistice Lines was a result of aggression by its neighbors.

Second, governments determined not to repeat a mistake in 1956–57, when, under international pressure, Israel withdrew from the Sinai Peninsula without a peace agreement with Egypt. As President Johnson put it in 1967, “Nasser slit our throat from ear to ear” by reneging on the 1957 terms for Israel’s withdrawal from Sinai."

Arguments for lawfulness:

1 Geneva Convention doesn't apply on the ground that, under Article 2, the Convention applies only to occupation of the “territory of a High Contracting Party.” No country has a recognized legal claim to the “occupied territories.” Consequently, they are not territories “of” any contracting party, and therefore the Convention does not apply to Jewish settlement. In making this argument, advocates of legality stress that the international community did not recognize Jordan’s annexation of the West Bank and that now Jordan has withdrawn its claim. 

2 Even if the Geneva Convention applies, it was not directed at the kind of activity undertaken by Israel. Article 49 of the Geneva Convention responded to the Nazi experience and is directed at transfers of large populations into occupied territories intended to colonize territories so as to endanger the economic situation or separate existence of the existing populations. Proponents of this view argue that the nature and extent of Israeli settlements in the West Bank do not threaten the native population and therefore would not violate the Geneva Convention even if it applied. 

4 There'a principe of into law that, where a prior holder of territory had seized that territory unlawfully (in this case, Jordan), the state subsequently taking the territory in lawful exercise of self-defense has, against the unlawful prior holder, better title. This argument turns in part on the facts that led to the 1967 War and the conclusion that Israel acted in lawful self-defense against Egypt’s blockade, Syrian attacks and provocations, and other menacing actions. 

5 A fifth argument is based on the historical claim of Jews to live in Palestine. Proponents of this argument, which arguably is not a legal one, trace the history of the region back to biblical times and assert that the Jews have had a continuous presence in the area and have a superior historical right to it.

Finally, my own 2 cents.

U.N. Security Council Resolution 242

November 22, 1967

Following the June '67, Six-Day War, the situation in the Middle East was discussed by the UN General Assembly, which referred the issue to the Security Council. After lengthy discussion, a final draft for a Security Council resolution was presented by the British Ambassador, Lord Caradon, on November 22, 1967. It was adopted on the same day.
This resolution, numbered 242, established provisions and principles which, it was hoped, would lead to a solution of the conflict. Resolution 242 was to become the cornerstone of Middle East diplomatic efforts in the coming decades.

The Security Council,

Expressing its continuing concern with the grave situation in the Middle East,

Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,

Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;

Affirms further the necessity

For guaranteeing freedom of navigation through international waterways in the area;
For achieving a just settlement of the refugee problem;
For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

Requests the Secretary General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution;

Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.

Since the military withdrawal is from "territories," not "all territories," that Israel can stay on some of the territory must imply that who all the territories will go to is an open question. If it's an open question, then ownership is an open question. If so, one can't say definitively that it's all Palestinian land because if it was then the U.N. would have had no right to let Israel stay on some of it. How could it? If that is so, that unclarity, that proprietary open-endedness, demanding resolution by negotiation, ousts the clear applicability of Fourth Geneva Convention Article 49(6). That being so, who can say that Israel with all of its historic ties to the land cannot settle some of the lands, those settlements subject to ultimate resolution as was the case in Gaza, resolution in that case coming from its unilateral withdrawal, with the settlements dismantled?

No comments:

Post a Comment