As for “the territory belongs to Israel”, see the discussion above, no need to reiterate.

First, a liberal democracy will definitely be the entity that would emerge from granting voting rights to all residents between the river and the sea.

There is a big difference between asserting Israel’s right to the area and maintaining that Israel should maintain control over the entire area. One can (and some do) assert Israel’s right to the area (not from a religious standpoint), and at the same time understand that the current situation requires a solution in which Israel would cede territory that it rightfully claims. This, in the interest of remaining a democracy in light of demographic changes.

In other words , yes, the territory belongs to Israel. However, Israel will probably have to, at some point, cede territory for the formation of another entity.

Boxcars? I’m sorry but I don’t understand your reference, I really hope you’re not implying genocide.

I agree that the pertinent parties should have the say about what they want and can live with, but as they both are apparently unable to come to an agreement, “we guys” abroad won’t shut up.

Of course the question how to legally label Israel’s presence in the WB, East J’lem, and the Golan, and it’s control of Gaza is not the be-all and end-all of the conflict, although important enough.
Perhaps you might want to consider that those who talk of occupation implicitly support a two-state solution, at least an intermediary one, while your claim of all the land implies one state. The options for the latter are
- a liberal democracy
- Bantustans
- boxcars
- bribing the Palestinians to leave voluntarily
So which one is it?

“In particular that would require Israel to recognise e.g. the PLO as representing the Palestinians (the GC does not bind private individuals), a recognition that was utterly absent before Oslo” — No, it required that the Palestininans abide by the UN resolution creating a Palestinian state in 1948. They didn’t.

Both “transfer” and “deport” meant State actions, not voluntary individual actions or land purchases.

I think we’ve argued this to death. You have your interpretation of this, and I am not going to convince you that you’re interpretation is anything other than gospel.

I am a pragmatist, and I think peace is not determined by borders but by agreements that all the pertinent parties (the Israelis and Palestinians, not you guys in Europe) can live with. It is not helpful to ending the conflict to keep insisting on preconditions for either side (“1948 ‘borders’ or ‘ending terror’), so instead of constantly stirring the pot by ranting about ‘occupation’ maybe you should devote your energies to encouraging dialogue and a peaceful solution to a situation far more complex than you allow.

On this question, Fiddler has given an excellent if partial answer about “forcible transfers”; the other part of the answer would be to note that your account is incompatible with the meaning of Article 49 as set out in the official commentary, which I discussed in some detail in my earlier post but which you seem to have ignored. On the broader point, the first clause of Article 2 shows that the Convention covers all cases when territory is occupied during a war between two Contracting Powers (in this case Israel and Jordan, who were certainly at war in 1967); it does not require that the territory in question be the legal property of one or other of them. It is true that Israel does not accept this interpretation, but her arguments are themselves not accepted by the main stream of international law (see, for example, the careful discussion in the Mallisons’ book which I cited earlier), and has been rejected by all authoritative bodies that have ruled on the matter, including the International Committee of the Red Cross and the International Court of Justice.

““the Golan (most which was never part of the Palestine mandate” — this is also untrue. Please get a map showing the bounderies of the original Palestine Mandate prior to 1923”

The following is the Israeli government’s own map of the Palestine Mandate as it existed in 1920:

http://www.mfa.gov.il/MFA/Facts%20About%20Israel/Israel%20in%20Maps/The%20League%20of%20Nations%20Mandate%20for%20Palestine%20-%201920

For a more detailed view, see http://en.wikipedia.org/wiki/Image:GolanHistoricalBorders.svg. As you can see, only the western part of the Golan was ever included in the Palestine mandate. The rest, the bulk of the territory which Israel captured in 1967 and subsequently extended Israeli law over, never formed part of the Palestine mandate at all.

As for the rest, I will simply note that you have merely reiterated your argument about Israel being the legal inheritor of the entire Palestine Mandate. That argument, as I observed earlier, is accepted by no relevant party: indeed, it is not even accepted by Israel herself, judging by her official statements and actions.

That is why I referred to your engaging in “fantasy law”. The problem is not that my account is “selective”, still less is it that you are disagreeing with me. The arguments that I have presented draw on (and sometimes cite directly) the rulings, arguments, and interpretations of mainstream international law (at least on my reading), the law that has formed the basis for the rulings of authoritative legal bodies on questions relating to Israel and Palestine and as set out in standard legal discussions of the subject. You on the other hand have cited no legal rulings or official interpretations, your arguments appear to be largely of your own devising, they have not been consistent with one another, and some of them are not accepted by Israel herself.

If you think that I have misrepresented the mainstream of international law, the answer is not to attempt to devise more arguments. The answer is to show how the arguments you are putting forward are themselves mainstream, for example through having formed the basis for official legal rulings and judgments on Israel and Palestine, or at least through being accepted in some of the standard books on international law. In the absence of that, I’m afraid that the inevitable conclusion is that you have no case to offer.

Why do I have the distinct impression you couldn’t even be bothered to read the document? It’s easily found on the web.

http://www.unhchr.ch/html/menu3/b/92.htm

Article 2
(…)
“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

Now, the argument that the GC doesn’t apply because the non-state actors on the Palestinian side are alleged to not accept and apply the GC’s provisions is new to me. In particular that would require Israel to recognise e.g. the PLO as representing the Palestinians (the GC does not bind private individuals), a recognition that was utterly absent before Oslo.

I’m at a loss what you mean by the “ex post facto application of the Convention in 1999″.

As for “transfer”, I suggest reading article 49.
“Individual or mass forcible transfers…”
The word “forcible” is there for a reason, which is that it’s not redundant.
“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The word here that implies “forcible” is not “transfer” as you claim, but “deport”. Both voluntary (transfer) and involuntary (deportation) “transfer” are prohibited.

Your argument about the Geneva Convention leaps right over the first part–whether or not it applies to the West Bank at all. There is no High Contracting Party involved on the Arab side of the equation, so it is highly dubious that it applies legally. The ex post facto application of the Convention in 1999 is both illegal and irrelevant, the former as a matter of law and the latter because it was politically motivated and no such ex post facto application was made anywhere else in the world. (Arab oil money buys votes again….)

As for the “transfer” question, the word itself connotes ‘forcibly’ and is, given the equivalent of the legislative history, in the context of mass forcible movements of populations by governments into territories formerly belonging to a recognized sovereign. Neither prerequisite exists here. Your application of it is absurd—telling the Jews who lived in the Old City of Jerusalem that they cannot return to their homes from which they were expelled by the Jordanians in 1948 because that is a “population transfer?” Telling a farmer who owned his farm in Kfar Etzion, Kfar Darom or Atarot that he can’t move back there otherwise he’s in violation of the Geneva Convention. Don’t be ridiculous.

“none of the events prior to the establishment of the state give Israel any legal claim either” — that is simply legally incorrect. Israel is the successor to the Jewish National Home based on the League’s ratification in 1922 — and the UN’s subsequent agreement to incorporate such prior holdings into its Convention. If this were a quiet title action, then Israel has the far better claim legally than the Palestinians, who rejected the UN Partition.

“[Israel] was founded on part of [the Mandate land] only, and the rest was designated for an Arab state, which overrode earlier designations of a Jewish state within Palestine.” It WOULD have overriden earlier designations had it been accepted by the Arabs — contracts are offer AND acceptance. Arab rejection of the Partition then and repeatedly since then has voided any legal claim at this point.

“the Golan (most which was never part of the Palestine mandate” — this is also untrue. Please get a map showing the bounderies of the original Palestine Mandate prior to 1923 when the colonial powers decided to rewrite it in order to guarantee the British oil in Mosul.

I’m tempted to overlook your condescending final paragraph, but I simply can’t pass up temptation : not everyone who agrees with you is “real” and valid, and not everyone who disagrees with you is someone to scorn. The “marketplace of ideas” is both the source of civil discourse in democratic society and on university campuses. Unfortunately, too many of you on the Left feel that your opinions are the only ‘valid’ opinions.

Oh, really? Are you still claiming, then, that the international law on defensive conquest hasn’t substantially changed, and that those who think otherwise are engaging in “popular misconceptions”? I had the distinct impression that after I exploded that you skewed off in a different direction altogether. Or what about when you not merely dropped the “missing reversioner” theory, but immediately employed an argument which, if it had any force at all, could only have done so on the assumption that the “missing reversioner” theory was invalid?

But I suspect that the problem really is that you DO believe what you say, and that you don’t recognize that in each of your successive posts you have not merely raised new arguments, but significantly changed the underlying legal basis on which you were arguing. This is what makes it extremely difficult to establish a coherent line of argument here.

And so we reach the latest iteration: “As for settlements, the Geneva Convention, assuming arguendo that it even applies to the disputed territories, prohibits the forcible transfer of civilian populations — not voluntary settlements on unoccupied land which sits in no sovereign domain.”

This is a grotesque misreading of the text of Article 49 of the Fourth Geneva Convention, which (in its first clause) specifically bans forcible transfers of the civilian population OUT of the occupied territory, but (in an entirely separate final clause) bans ALL transfers of the occupiers’ own civilian population INTO that territory, whether or not they are forcible. This is confirmed by the official commentary on the Conventions, which sets out the reason for the ban on civilian settlement as to prevent the occupier from worsening the position of the native population by moving their own civilians there for the purposes of colonization or for broader political reasons. The commentary explicitly distinguishes this case from the type of forcible transfer set out in the first clause. The one similarity is that both are about protecting the native population, not about protecting the civilian population of the occupiers. It is irrelevant to the interests of the native population how the occupying civilians get there: the main thing is that they should not be there at all.

I cannot imagine how you came up with such a bizarre reading of the text, but it is frankly a ludicrous one, and one that has absolutely no support in any legal account of the Geneva Conventions that I have ever seen, and is contradicted by every international judgment concerning the application of Article 49.

As for your long history of the prior ownership of the land, it is true that Jordan had no legal claim to it, but that is irrelevant, since none of the events prior to the establishment of the state give Israel any legal claim either – at least, no claim that anyone else in the world or any legal authority recognizes. Israel did not exist in 1922, and Israel is not the legal successor state to the entire Palestine Mandate; it was founded on part of it only, and the rest was designated for an Arab state, which overrode earlier designations of a Jewish state within Palestine.

It is true that that Arab state never came into existence, but that does not mean that Israel magically comes into possession of the whole by default. I am not aware of any country or legal authority which accepts this idea of yours: indeed, I’m not even aware that it is a claim made officially by Israel herself. I should also point out that it is compatible with neither the “missing reversioner” theory (which HAS been publicly accepted by Israel, though it has little legal validity, as I earlier noted), nor with your first suggestion that Israel legally acquired the land in a defensive war (itself of no validity).

Indeed, it is not even compatible with Israel’s own actions since 1967. Israel has annexed and extended Israeli law over the Golan (most which was never part of the Palestine mandate, and so the argument above offers no justification for it even on the most generous reading). Yet Israel has not extended Israeli law over any of the West Bank apart from East Jerusalem. Hence even she does not treat this as if it were simply Israeli territory that she liberated from Jordanian occupation: and that alone would weigh heavily against the acceptance of the Israeli case in the unlikely event that she was foolish enough to base her legal claims on this argument.

Instead of constantly engaging in fantasy law of this sort, can I suggest that you start from the real law of occupation and conquest as it has been interpreted by real international lawyers over the last sixty years; then you should look at the real opinions about their applicability to Israel and the West Bank, including the opinions and judgments expressed in those real international forums whose rulings carry real legal force. And then deal with the consequences.

“You are repeatedly abandoning one legal issue and replacing it with another” — no, I’m not. Blog commenting is incremental by nature, and I’m not abandoning any argument—I simply respond with additional points to your arguments.

As for settlements, the Geneva Convention, assuming arguendo that it even applies to the disputed territories, prohibits the forcible transfer of civilian populations — not voluntary settlements on unoccupied land which sits in no sovereign domain.

As for “occupation” — you can’t “occupy” what is legally yours. If we’re agreed that the Jordanians illegally annexed the West Bank, and so have no standing to make laws and regulations, then there is no reason to accord their settlement agreements any weight.

Who was the predecessor power? The League of Nations, which with the dissolution of the Ottoman Empire, became the source of international law with regard to former Ottoman territories. In 1920 at the San Remo Conference, the international community recognized Jewish rights to a homeland in the territories formerly belonging to the Ottomans due to both demographics and historical connections to that land, as well as to settlement throughout the land. This decision, creating a Jewish National Home, was then ratified by the the League of Nations in 1922 . It was also endorsed by a joint resolution of the United States Congress later that year. In 1925, another official US endorsement of the Jewish National Home in this territory was announced in the form of the Anglo-American Convention on Palestine.

After WWII, when the UN was founded, ithat international body’s Charter reaffirmed the existing territorial rights of peoples as they had been before the war — in effect, endorsing the Jewish National Home in the territory outlined by the League of Nations.

The British had no more standing than the Jordanians–they were mere caretakers of the Mandate.

With the pragmatic acceptance by the Jews of a further partition of their National Home in 1947 (the first partition created Jordan), there could have been two states–but the Arabs rejected this partition, insisting on the creation of an Arab state. The Partition Plan was thus rendered moot.

Subsequent cease-fire lines with Jordan are simply that–cease-fire lines. Not borders. No borders have ever been established, and no sovereign Palestinian country has been established. Res. 242 recognizes that–that borders need to be mutually recognized and secure.

But the West Bank, the Golan and Jerusalem don’t need to be annexed — by operation of law, they are ours alreadyand have been since 1922. The whole “peace process” is simply an effort to give up what is ours in return for a viable peace. Successive Israeli governments have attempted this without success. It’s my opinion that these efforts have failed due to unrelenting Arab irridentism.

My reason for pointing out the examples of Morocco and Cyprus is to highlight the international standard when it comes to disputes among states versus disputes involving Israel.