1. First: on Resolution 194 (I presume you mean that, and not “191″). In fact it refers to neither “Palestine refugees” nor “Palestinian refugees”, but more generally to “refugees”, making no distinction by nationality or religion. So yes, you are absolutely right that IF put into effect, and IF not superseded by other overriding considerations of international law (see 3 below), it would give exactly the same rights to Jewish refugees who fled what are now Israeli-occupied territories the right to return to their homes as to Palestinian refugees to return to their homes in what is now Israel.

Can I please confirm with you that you support this? I have to say that I’m surprised, if so – your other postings on this site gave no impression that you support the Palestinian right of return to Israel, but I cannot see any interpretation of Resolution 194 which would give rights to Jews but not to Palestinians.

Of course, if you don’t support the Palestinian right of return under Resolution 194, then you are just playing with words, and the rest of your argument is a dead letter.

2. Assuming, however, you do accept this argument, then this would allow Jews who fled (or their legal heirs) to return to (or be compensated for) the pieces of property that they abandoned. It would not cover a single piece of property that was not Jewish-owned in 1947-8, nor would it cover a single Jew who could not show that they either fled themselves at that time or legally inherited the property from those who did. What proportion of the current occupants of the settlements do you think that applies to? My guess (admittedly rough and ready) is that it is less than 1% of them, but you may have fuller information.

3. But even that is assuming that the relevant portions of the Fourth Geneva Convention are superseded by the specific provisions of Resolution 194. In fact that is not the case, as is amply confirmed by the legal resolutions on the subject. The Geneva Conventions postdate Resolution 194, and provide the overriding framework for all the laws of war: if there is any conflict between Resolution 194 and the Geneva Conventions it is the latter that take precedence.

And like it or not, from a legal point of view “transferred in” is precisely what the settlers have been. Whatever the situation 20 or more years previously, they were not there in the years prior to the Israeli conquest of the territory, and they moved there subsequent to the conquest, not only with the permission of the Israeli government, but with that government actively working to plan, implement and support the settlements (as Gershon has documented in detail in his book). And, as is confirmed by repeated judgements of the relevant authorative legal bodies, every part of that is illegal, no matter the prior status of the settlers in question.

And Fiddler (don’t you just love people who are so sure of themselves and their opinions hide behind nom de blog?): a) not all Arabs (and surely not 3/4 million) were evicted in ’48 and allow me to guess that if the Jews had lost that war – one that was launched by Arabs and Arab states in violation of the UN resolution to establish two states out of the British Mandate (that is, of course, the original sin which all seem to miss or ignore) – not one of you would be arguing in the favor of those left alive, refugees themselves.

And by the way, did you all know that the original 191 spoke of “Palestine refugees”, not “Palestinian”, and that therefore, in principle (had Israel not announced it was voluntarily withdrawing from UNRWA in 1953 or so), Jews from Gush Etzion, Bet Haarava, Atarot, and the Old City of Jerusalem, etc. should have been received funds as refugees and even UN monies to reestablish their homes in…the “occupied territories” – your lingo. Ha.

and b) we, living in Judea and Samaria, were not “transferred in”. Many Jews were here for hundreds of years and many until right before 1947-48. That’s the natural reality. Somehow, in your heat for the “Pals.”, you overlook that element of the equation which negates the applicability of Geneva 1949 to our situation.

And as for my mother, who is deceased over a decade, she asked to be buried here in Shiloh’s cemetery. She knew what was right: Jews belong in homes in their homeland.

The “Israel is being singled out” argument begins with a guilty plea. That’s what you’re saying: yes, ‘we’re in the wrong, but other places are also in the wrong, why do we have to talk about Israel?’

There’s two solid answers to this: we’re focussing on Israel, because unlike nearly every other similar situation, this is an injustice which ramifies well beyond the borders of Israel/Palestine. We ALL have a stake, because we’re all dealing with the consequences of this particular injustice. That’s true in a way that, say, the chinese occupation of Tibet is not.

And secondly, you’re guilty. You just confessed. If you want to stop taking heat, stop doing wrong. Your mother told you that two wrongs don’t make a right, and that what the other boys and girls are doing doesn’t make what you’re doing OK. It’s just as true now as when your mother taught it to you as a child.

The Hague convention had not included similar provisions because it was thought then that the practice had fallen into disuse, not because deportations were deemed fine and dandy “in principle”. The Armenian genocide and WW II obviously proved that deportations were in fact still very much in use.
The eviction of 3/4 a million Palestinians from to-become Israel in 1948 would clearly have fallen under the prohibitions of art. 49, had it been in force then.

Well, if we can prove that their economic position has vastly improved and in comparison with other Arab countries is also better, would the Convention then by applicable?

But to the point, I read that “This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference.” Oh, gee. Hesitation. Well, I’m still hesitating then. And this: “the concepts of “deportations” and “transfers” in that Article could have kept throughout the meaning given them in paragraph 1, i.e. the compulsory movement of protected persons from occupied territory”. “Compulsory”? Is that what happened in Israel with Judea, Samaria and Gaza?

On another aspect, the deportation/transfer element was introduced only because of the German/Nazi practices in WW II since the Hague Convention had not included it. In other words, it’s not the principle but the practice – which means that “political” opinions of judges are also a part of what is legal, especially when one enters the field of “the interpretation” of the law.

There are many other countries who have parallel problems dealing with territory, etc. yet it seems that only Israel is being ganged up on. This is not law but the jungle. I have no desire to be part of this world of law and I suggest that all those who adhere to liberalism take the same stand.

Btw, as for the evacuation element in Geneva, since some of the Gush Katif residents were living in locations that had been established prior to 1947, why didn’t any liberal legal eagle suggest that those persons were protected by Geneva?

“So, it would seem that your basing yourself on someone like Theodor Meron is at best just taking political sides, not legal”. No, that does not follow. The fact that there are two legal opinions does not mean that both are equally valid, or that one would only choose between them on a political rather than a legal basis. The view of Rostow, Blum et al. is not widely accepted among international lawyers, and indeed it has been repeatedly rejected in the judgments of international bodies whose rulings are regarded as authoritative, such as the International Court of Justice.

Look at it this way. If I argue a case before the US Supreme Court, and the Supreme Court rejects my arguments, there are certainly two legal opinions available, but the two opinions are not of equal legal value or authority. My opinion has lost, and the opinion that is taken forward in subsequent law is the one supported by the Court. Observing that the law is what the Supreme Court has ruled it to be is not a “political” choice, but simply the effect of their having ruled a particular way.

Something similar (mutatis mutandis) applies in cases of international law. It is true that no single body has the normative authority within the international system that the Supreme Court has in the US, but the cumulative weight of international judgments adds up to much the same effect. To state the majority opinion under those circumstances is not to “take political sides”, but simply to apply settled law.

And it has to be said that the opinion of Blum et al. always came across as something of a stretch (which is why most international lawyers rejected its reasoning even before it was specifically ruled against by bodies like the ICJ). The stretching can be seen in your own statement that “Geneva Convention Art. 49 simply does not prohibit “settlement” but protects against displacement and deportation”. This is not true, as can be seen if you look not only at the text of the Convention, but also at the official commentary, which makes it clear that the last paragraph is there to protect _the native population_ from having their economic and racial position worsened by having the occupiers’ civilians colonizing the territory around them. Nothing is said, and nothing is implied, that indicates that the natives have to be displaced or deported for that paragraph to take effect.

And as I said, that is not some weird minority view: it is the standard interpretation of the law. I am not surprised to find that there are still judges within Israel who rule otherwise (since after all, the Israeli government still officially holds to the Blum/Rostow etc. interpretation) but I would be very surprised if there were many international lawyers who thought this was a valid legal ruling in the international context.