Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 1)

by Lorenzo Kamel

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University's History Department and a Visiting Fellow (2013/2014) at Harvard University's Center for Middle Eastern Studies.]

On the anniversary of the International Day of Human Rights (December 10th) the European Parliament approved a four-year agreement with Morocco to allow European boats to fish in territorial waters off Western Sahara. The EU does not recognize Western Sahara as part of Morocco. Furthermore, the occupation of Western Sahara represents a violation of the United Nations Charter prohibition of aggression and forced annexation.

Acting as a realist rather than normative power, the EU adopted an approach which contradicts some of its own policies applied in other contexts. This is particularly evident once that the fisheries agreement is analyzed in the frame of the recent (July 2013) EU guidelines barring loans (which constitute less than 10 percent of funds the EU allocates in Israel) to Israeli entities established, or that operate, in the territories captured in June 1967 (the “EU Guidelines”). The EU-Morocco deal applies not just to the area under internationally recognized Moroccan sovereignty, but to all areas under its jurisdiction, including the Moroccan-occupied Western Sahara. The EU Guidelines, on the other hand, apply to the West Bank, East Jerusalem, and the Golan Heights: all areas under Israeli occupation.

This inconsistent approach plays in the hands of some of the most active supporters of the occupation of the Palestinian Territories and represents a major blow for the EU’s international credibility. Eugene Kontorovich pointed out for example that the positions adopted by the EU in its negotiations with Israel over grants and product labeling are inconsistent with those it has taken at the same time in its dealings with Morocco and the ones applied in contexts such as Northern Cyrus, Tibet, or Abkazia/Ossetia. According to Kontorovich, the EU approach regarding Western Sahara “is consistent with all prior international law […] the EU is right about Western Sahara – which means it is wrong about Israel.” [italics added]

This post and its follow-up, which will be posted later today, argue that the EU is right about Israel and wrong about Western Sahara. Together, they discuss the EU approach to Israel-Palestine in a comparative way by first examining EU policy in Northern Cyprus and Western Sahara – two crucial cases often raised by critiques of EU policy towards Israel to highlight EU double-standards – before turning to the Israeli-Palestinian case itself in the second post.

The case of Northern Cyprus

It is often claimed that Brussels “knowingly and purposefully provides substantial direct financial assistance to settlements in occupied territory – in Turkish-occupied Northern Cyprus”, and that in Northern Cyprus “it is EU policy to provide grants specifically for settlers of such territory”. The reality is indeed more complex.

As in the case of the Israeli entities established in the Palestinian territories under Israel’s national law, the EU does not provide support to Turkish entities established in Northern Cyprus under Turkey’s national law. As happens also in relation to Israeli natural persons based in or carrying out activities in the occupied Palestinian territories, the EU has taken appropriate steps to evaluate the most suitable implementation methods for “individual projects” in Northern Cyprus, where perhaps half of the estimated 300,000 residents were either born in Turkey or are children of settlers. Quoting the EU report on the issue, as it cannot enter into financing agreements with the Turkish Cypriot authorities, “because they are not officially recognised by the international community, the [EU] Commission has primarily implemented the assistance by entering into contracts directly and acting as the sole contracting authority.”

These policies are carried out by the EU with the official purpose “to facilitate the reunification of Cyprus” and with the aim of “improving the contacts between the two communities”. They are fully consistent with international law, including with Article 43 of the Hague Regulations, according to which building infrastructure is to a certain extent part of the occupier’s obligations, as long as the infrastructure is built for the benefit of the local population.

The case of Western Sahara

Since decades Western Sahara and the Palestinian territories are witnessing two struggles for self-determination. Both areas register human rights violations and both are recognized by the United Nations as being illegitimately under the rule of a foreign power. The two contexts, however, have few other points in common. Still today Western Sahara represents one of the most sparsely populated territories in the world. Contrary to Palestine and its local majority, under Spanish colonial rule Western Sahara was inhabited mainly if not only by nomadic tribes which paid allegiance to different powers. When territorial boundaries have been imposed by the colonial powers, the nomadic tribes that roamed sub-Saharan region were largely ignored. Several Sahrawi tribes, characterized by an internal governance structure, paid allegiance to the central authority of the monarchy in Morocco.

This aspect has been confirmed by 1975’s International Court of Justice’s (ICJ) advisory opinion, which, beside upholding the right of the country’s inhabitants to self-determination, pointed out that there were “legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara”. Sahrawis have the full right to self-determinate their future and Morocco should be considered accountable for its violations of human rights. Nonetheless, it is still today a matter of harsh debates to which extent Polisario – the Sahrawi rebel national liberation movement, supported since 1975 by the Algerian government, committed to put an end to the Moroccan occupation of Western Sahara – should be considered the sole or even the main legitimate representative of the Sahrawi people.

Despite the evident differences between the two contexts, the problem remains: the EU (and the UN) recognizes Western Sahara as an occupied territory. Either Brussels changes its standpoint on the issue, or it has to be consistent with its own policies and procedures. What is at stake is the political and moral credibility of the EU. This is even more the case considering that in signing the recent fisheries agreement the aspirations of the local indigenous Sahrawi population as well as the concerns expressed by several international organizations have been largely ignored. Greenpeace adviser Justine Maillot noted for example that the “increasing the EU catch in the waters of Morocco and Western Sahara will lead to overfishing and conflict with the needs and interests of local people.”

http://opiniojuris.org/2014/01/09/eu-adopting-double-standards-approach-toward-israel-palestinian-territories-part-1/

52 Responses

  1. The Author states that both Western Sahara and the Palestinian territories “are recognized by the United Nations as being illegitimately under the rule of a foreign power”. I am not sure which particularly UN organ the Author is referring to or whether it has the authority to constitutively determine the illegality of another State’s presence. In any event, and assuming arguendo Judea and Samaria/West Bank is occupied, Israel’s presence in the Territories derives from a lawful act of self-defence. Thus, even the ICJ in its Israel-bashing Wall advisory opinion did not consider Israel’s “occupation” illegal, whereas only Judge Elaraby stated otherwise (and we know what happened to him).
     
    Does this make a difference? Yes, in accordance with the principle of ex injuria jus non oritur. As Morocco’s presence derives from an illegality, measures taken by it in Western Sahara beyond “acts and transactions… relating to public property, concessions, etc.” must be considered null.

  2. @Ori
    Even if the occupation would be in self-defence the local population still has the right to externa self-determination, which means the right to determine the future of the territory, including the right to an independent state.
    Moreover, see here scholars arguing that the occupation is indeed illegal.
     

  3. Ori I am not sure what you mean with ‘Israel’s presence in the Territories derives from a lawful act of self-defence’. There is nothing like a lawful preventive act of self-defence in international law. Under the UN charter, states may not initiate war against another. Force may, however, be used in defense in the event of an “armed attack”.

    Furthermore, in Quigley’s words, ‘the june 1967 war, rather than serving as precedent for preventing war, should be the poster child for pretexual invocation of force used in advance’.

  4. Mihai, the reference to external self-determination is controversial in it of itself. While there are the theoretical exceptions provided by Cassese (and stated obiter dicta by the Canadian Supreme Court, relying on Cassese), these remain in the realm of theory and have yet to implemented in practice (and would appear only to apply in the most severe circumstances – and it’s difficult to see how that of Judea and Samaria/West Bank would constitute one of them). This conclusion shouldn’t be surprising considering the vagueness of the concept of self-determination. In actual practice, external self-determination has only been applied as a legally binding obligation in instances of post-colonialism.
    In any event, I’m unaware of a customary (or conventional) norm that illegalises occupation if it has continued for a certain period of time. While Orna Ben-Naftali et al. indeed have an interesting theory concerning prolonged occupation, there seems to be little actual State practice and opinio juris to support their contention. This is hardly surprising since the “occupying” State has an interest in protecting the self-determination of its own people – something difficult to maintain without security.
     
     
    Sivi, State practice and opinio juris has accepted the principle of anticipatory self-defence when an armed attack is imminent. This shift in State practice was prompted by the lack of capability of the Security Council to address threats and breaches of the peace and aggression and thereby prevent such dangers to the lives of nations. This wouldn’t in any event be the only instance in which interpretation of the UN Charter has developed beyond its basic text in light of the inability of the Security Council to enforce peace (see the Namibia advisory opinion for example).

  5. Ori states, “…Israel’s presence in the Territories derives from a lawful act of self-defence. ”
    That is probably the most legally, intellectually and rationally absurd remark I have seen to date in 2014.
    Reading further, when Ori qualifies the ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory decision as ”Israel-bashing Wall advisory opinion”, I stopped reading all together.
    Thought we were in the 21st Century!

  6. Canuck,

    I stopped reading when I saw the expression “Judea and Samaria”…

  7. I’m very interested in the legal discussion that is being held here; however, Canuck and Kevin, ad hominem attacks are not relevant legally and only deteriorate the level of conversation. I’d love to hear what you have to say about the essence of the legal conclusions reached by Ori.

  8. OJ bloggers probably have more important matters to attend to than comment on “legal conclusions” of every person who devises his/her own sci-fi legal theory; you know there’s one when you see “Wesbank”, “occupied” and “arguendo” in one sentence.

  9. Ori@
    the State “has an interest in protecting the self-determination of its own people – something difficult to maintain without security”…. and in pushing new settlers to colonize the area. Security often works just as a blanket to cover other interests.
     You claim that “State practice and opinio juris has accepted the principle of anticipatory self-defence when an armed attack is imminent”. It is more complicated than this and, on top of everything, the sentence “when an armed attack is imminent” does not apply to this case. Proponents of anticipatory self-defence have sought examples predating the june 1967 war but have come up empty. The US could clear the air in discussion of a resolution of this issue by simply acknowledging the facts as they appear in “Foreign Relations of the United Nations 1964-1968″ – that the US assessment was that Egypt had no intention of attacking Israel, that the US tried desperately to dissuade Israel from attacking Egypt, and that Jordan and Syria entered the hostilities only in response to Israel’s invasion of Egypt.
     

  10. Harris,

    My comment was not remotely ad hominem. I said nothing about the kind of person Ori is. I simply indicated, in shorthand, that I believe there is no point in having a legal argument with someone who feels comfortable describing the occupied West Bank as “Judea and Samaria.”

  11. Kevin,
    The fact that you just used the phrase “with someone”, points exactly to the use of ad hominem. If the same argument were given by someone who would not use such jarring terminology, what would be your legal stance?

  12. Harris,

    You need to refresh your recollection of what an ad hominem attack is. Brian Leiter has a good explanation here.

  13. While that is an interesting explanation (which actually strengthens my point, as you had used his terminology as a reason to discredit his arguments, while those arguments are not based on the truthfulness or credibility, vel non, of those terms) — I’m still interested in hearing (or, reading) your legal response. 

  14. One has to assume that Kevin similarly ignores The League of Nations Mandate for Palestine (Eretz Israel) and the UNGA Resolution 181 which both refer to the District of Samaria, Samaria and Judea.
     
    The terms are geographical.
    West Bank is a term that originated from the illegal occupation of Cisjordan by Transjordan in 1948/9.

  15. I was drawn to this website by its self-description as “a forum for informed discussion and lively debate about international law and international relations.”
    As such, I am appalled at what I’ve read on this thread.
    According to numerous posts herein, it is OK to have a “lively debate” about the Israel/Palestine dispute as long as you accept in advance that the Palestinians are correct and that the West Bank is “occupied Palestinian territory.”
    Since Ori was not willing to accept the Palestinian narrative in advance, he has been attacked ad hominem (as noted by Harris) and deemed unworthy of a response.
    Those few who did respond at least to reject Ori’s contention that the Israeli pre-emptive attack on Egypt and Syria in the 6 Day War was legal under international law, other than Mihai and Sivi, have used arguments like “Ori states, “…Israel’s presence in the Territories derives from a lawful act of self-defence. ”That is probably the most legally, intellectually and rationally absurd remark I have seen to date in 2014.”
    Explanation (historical or legal) of such assertion: none. Apparently, Res Ipsa Loquitor on this site: the assertion speaks for itself.
    Apparently, “in the 21st century” , Israel (or its supporters) is not even entitled to defend itself in writing.
    So much for a site intended for informed discussion and intelligent debate.

  16. @Ori
    ==Mihai, the reference to external self-determination is controversial in it of itself.==
    It is not controversial at all. The most states in the UN become independent based on this right. ICJ treated the occupied territories as an interrupted case of decolonisation + a military occupation. In both case the local population has the right to self-determination. Palestine was an Ottoma colony after all and a mandate. Populations in colonies and mandates have the right to self-determination. The Jordanian and the Israeli occupations would not void this right.
     

  17. Harris, legal response to what?
     
    Ori wrote 3 wrong things in 1 sentence:
     
    “…Israel’s presence in the Territories derives from a lawful act of self-defence. ”
    1) As the seconf part of this post pointed out, “It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law – does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan”.
     
    2) Proponents of anticipatory self-defence have sought examples predating the june 1967 war but have come up empty.
     
    3) It is very superficial to claim that Israel had the right to breach the UN Charter attacking another state for “self-defence”. It was not self-defence at all. Please read the book of John Quigley (Cambridge UP, 2012): ‘The june 1967 war, rather than serving as precedent for preventing war, should be the poster child for pretexual invocation of force used in advance’.

  18. “judea and samaria…the terms are geographical…West Bank is a term that originated from the illegal occupation of Cisjordan by Transjordan in 1948/9″.

    Morris, the terms are political. If want your “judea-samaria” push the State of Israel to give back the coast between Ashkelon and Ashdod that was not occupied by the “israelites” for one single day in its entire history. Otherwise you risk to be selective. And BTW, jews were given Judea and not Samaria. Jews descend from Judah, and not Ephraim, Manasseh etc. who were ancestors of Samaritans. Most Samaritans, that at the times were despised by Orthodox Jews in Jerusalem, converted to other religions after VI-th century, and the largest number of both Samaritans and their descendants is in the area of Nablus. Samaritans were not affected by the expulsion of Jewish rebels by Romans and their population was large enough that they rebelled when Byzantines tries to forcibly convert them to Christianity in VI-th century.

  19. Miller

    “ as long as you accept in advance that the Palestinians are correct and that the West Bank is “occupied Palestinian territory.”:

    did you read the second post of this article? It’s also, if not mainly, about this issue.

    “Explanation (historical or legal) of such assertion…”: again, check post n. 2, we dont have to repeat everything in the comments.

    “Israel (or its supporters) is not even entitled to defend itself in writing”:
    playing the role of the victim? i am very happy to read informed comments from persons with different ideas. for now Ori’s comments were rather weak, this doesn’t mean that we will not read or take into consideration yours or his coming comments.

  20. To bring us back to the original question regarding EU standards I propose that the EU establish its good faith credentials and create an example that could lead to resolution of the Israeli-Palestinian conflict.  It could do so by ending the illegal occupation of the South Bank (aka Andalusia) of the Iberian peninsula.  Step 1 – relocate the existing populations from the south to their historical homelands of Catalonia, Asturias and Galicia.  Step 2 – restore the stolen property and lands stolen  from those Moslems and Jews illegally expelled.  Step 3 – allow a harmonious multi-cultural state to arise which could be an example to others.

  21. Re: I am not sure which particularly UN organ the Author is referring to or whether it has the authority to constitutively determine the illegality of another State’s presence.
     
    The General Assembly has adopted resolutions in both regular sessions and in Emergency Special Sessions which decided that Israel’s continued occupation of the Arab territories captured in 1967 was illegal. It said the situation violated the UN Charter and UN resolutions, including ones which called for an immediate and unconditional withdrawal, and said the situation constituted aggression as defined in its Definition of Aggression, A/RES/3314 (XXIX) (14 December 1974).
    *General Assembly Resolution ES-9/1 link to un.org
    *General Assembly resolution 39/146 link to un.org
    In the “Certain Expenses” case, which dealt with the power of the General Assembly to deploy the UNEF force to the Sinai and levy assessments to defray the costs, the International Court of Justice stated that the role of the Security Council in the maintenance of international peace and security is primary, but not exclusive. It noted that decisions adopted by the General Assembly are not limited to hortatory ones or mere recommendations, and that, among other things, decisions adopted under the terms of Article 18 could be dispositive and have operative design.
     
    In the Namibia case the ICJ made it clear that South Africa’s continued occupation was illegal and that the General Assembly was not making a finding on facts established others, but “formulating a legal situation”, in other words it was laying down the law, when it terminated the mandate and said South Africa had no further right to administer Namibia.
     
    There are several multilateral anti-war and conciliation treaties the Montevideo Convention, the OAS Charter, and the Rome Statute which explicitly state that all military occupations are illegal or that an occupation in violation of the UN Charter is illegal.
     
    Re: West Bank is a term that originated from the illegal occupation of Cisjordan by Transjordan in 1948/9.
     
    There is an element of irrationality in the Zionist claim that Great Britain unilaterally severed Transjordan from Palestine, while also claiming that the two peoples had no right to form a union again once the international mandate was terminated. You can’t claim that Jews had the right to establish an independent state after the mandate was terminated, but that the Arabs of the West Bank did not have the right to convene a Congress and hold a plebiscite on the question of union with Transjordan. After all, both are legal modes of exercising the right of self-determination. After the national plebiscite was conducted, Jordan had Palestinian lawmakers, Palestinian Prime Ministers, Palestinian Foreign Ministers, and Palestinian Ambassadors. So, it strains credulity to talk about an illegal occupation.
     
    The Security Council asked the Arab Higher Committee about the presence of Arab armed forces and it replied that it had requested the assistance of Transjordan to maintain or restore order after the Mandate was terminated and the former administering power had withdrawn from the territory. See S/775 Political authority in Palestine, request for outside assistance,truce – Questionnaire from SecCo to Arab Higher Committee and reply
     
    The opposition parties in the Knesset had called for an “unprecedented” session to debate the ratification of the union and incorporation of the West Bank into Jordan. They did that because the government of Israel’s public statements had not claimed the annexation was illegal. Ben Gurion pointedly refused to do that. See the Minutes of the 135th Sitting of the First Knesset, 3 May 1950, in Netanel Lorach (ed), “Major Knesset Debates, 1948-1981″ Volume 2, JCPA/University Press, 1993, starting on page 571. (pdf file)
    Abba Eban said “Israel holds no territory wrongfully, since her occupation of the areas now held has been sanctioned by the armistice agreements, as has the occupation of the territory in Palestine now held by the Arab states.” see “Effect on Armistice Agreements”, FRUS Volume VI 1949, 1149
     
    The UK, US, and many other governments recognized the union or took steps which were incompatible with non-recognition. For example, the FRUS is the official documentary record of major US foreign policy decisions.The 1950 FRUS contains a Memorandum of Conversation, between Mr. Stuart W. Rockwell of the Office of African and Near Eastern Affairs and Mr. Abdel Monem Rifai, Counselor, Jordan Legation in Washington, June 5, 1950 which officially documents the US recognition of the union between Arab Palestine and Jordan and the sovereignty of the new joint entity over the new territory:
    In response to Mr. Rifai’s question as to when the US was going to recognize the union of Arab Palestine and Jordan, I explained the Department’s position, stating that it was not the custom of this country to issue formal statements of recognition every time a foreign country changed its territorial area. The union of Arab Palestine and Jordan had been brought about as a result of the will of the people and the US accepted the fact that Jordanian sovereignty had been extended to the new area. Mr. Rifai said he had not realized this and that he was very pleased to learn that the US did in fact recognize the union.

  22. Maon, the terms are geographical and historical, not political.
     
    Samaria was the capital of the Kingdom of Israel and later incorporated into the Roman province of Judaea.
     
    Whether the Samaritans were descended from the lost Israelite tribes or from a transplanted population of Assyrians, their name was taken from the city of Samaria that had previously been the Israelite capital.
    The reason the Samaritans survived the Roman exile was because they were in conflict with the Jews thereby earning the respect of the Romans. Under Byzantine rule, community was practically wiped out and those who survived lived as second class citizens/dhimmis until the arrival of the British.
     
     

  23. Hostage, I must depart from your opinion concerning the Jordan. To begin with, the two exceptions to the prohibition of use of force (self-defence or UNSC authorisation) are absent for justifying Jordan’s invasion in 1948. In any event, while being a guiding principle of the UN Charter, a legal right to self-determination itself was yet to form (see e.g. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal 37-43 (1995); Malcolm N. Shaw, Self-Determination, Human Rights, and the Attribution of Territoryin From Bilateralism to Community Interest: Essays in Honour of Bruno Simma590, 598 (Ulrich Fastenrath et al. ed., 2011)). Moreover, as noted by a Chamber of the ICJ in Gulf of Maine, “uncertainties and a fair degree of inconsistency” in policy cannot constitute acquiescence.

  24. Yep, mere coincidence that the commenter on this post who is pushing the ultra-right Israeli line uses the terms “Judea” and “Samaria.” Nothing remotely political about that.

  25. “ultra-right Israeli line”
    They are the names for the territory in the Hebrew language.

  26. Re: Hostage, I must depart from your opinion concerning the Jordan. To begin with, the two exceptions to the prohibition of use of force (self-defence or UNSC authorisation) are absent for justifying Jordan’s invasion in 1948.
     
    The Palestinian Arabs had no organized police force or armed forces. King Abdullah and the government of Transjordan had received, and were still receiving, many requests and petitions from Palestine Arab notables. In all the communications, the Palestinians begged for the help and protection of the Arab Legion as soon as the British forces withdrew. The Transjordan government proposed to send the Arab Legion across the Jordan when the British mandate ended, and to occupy only that part of Palestine awarded to the Arabs which was contiguous with the frontier of Transjordan. See Sir John Bagot Glubb’ “A Soldier With The Arabs”, Harper, 1957, pages 63-66. Historian Eugene Rogan says that petitions, from nearly every town and village in Palestine, are preserved in “The Hashemite Documents: The Papers of Abdullah bin al-Husayn, volume V: Palestine 1948 (Amman 1995)”. See Chapter 5, Jordan and 1948, in “The war for Palestine: rewriting the history of 1948″, By Eugene L. Rogan, and Avi Shlaim, Cambridge University Press, 2001.
     
    On the subject on the “invasion”, you can’t eat your cake and still have it too. In 1946 the Jewish Agency spokesmen complained about plans for independence and claimed that Transjordan was an indivisible part of the Mandate. The agency said the Jewish people had a reserved right to the territory and that Transjordan’s independence violated Article 80 of the UN Charter. See “Mandate is Indivisible: Jewish Agency Objections to Severance of [Trans-Jordan] T-J”, Palestine Post, Apr 9, 1946, Page 3 in the Historical Jewish Press Archives
     
    Rabbis Wise and Silver submitted a long detailed legal argument to the US State department on behalf of the WZO and Jewish Agency for Palestine objecting to independence of Transjordan and its application for membership in the UN. –See Foreign relations of the United States, 1946. General; the United Nations Volume I, Page 411 The US Secretary of State Burns adopted the position that no action should be taken on Transjordan’s application until the United Nations could address the Question of Palestine as a whole. See –Minutes of the 57th Session of the Security Council, S/PV.57 pages 100-101
     
    Thereafter, the Jewish Agency did not treat Transjordan as a separate foreign state. Chaim Weizmann personally lobbied President Truman and said it was imperative that the Transjordanian port of Aqaba be included in the Jewish state.See John Snetsinger, Truman, the Jewish Vote, and the Creation of Israel, Hoover Press, 1974, page 61 A few days before the November 29, 1947 decision on partition, U.S. Secretary of State Marshall noted frequent references had been made by the other members of the Ad Hoc Committee on Palestine regarding the desirability of the Jewish State having both the Negev and the Port of Aqaba, which in his opinion was not in Palestine. See Foreign relations of the United States, 1947. The Near East and Africa Volume V, page 1255
     
    Declassified internal US State Department memos regarding discussions among the French, Belgian, US, and UK representatives of the Security Council revealed that Transjordan’s entry wasn’t viewed as an invasion or act of aggression. For example here’s a cable from:

        The United States Representative at the United Nations (Austin) to the Secretary of State
        SECRET US URGENT NEW YORK, May 9, 1948-6: 43 p. m.:
        Parodi called meeting of British, Belgian, American, French representatives last night to discuss situation regarding truce and possible action which SC may be called to take following May 15. Hare and I attended. Parodi said time fast running out and essential to make up minds now regarding certain problems.
        He said that as of May 15 we would be faced by declarations two states of Palestine coupled with entrance of Abdullah. Regarding latter two ideas are current. The first is that if Abdullah moved beyond own frontier it might constitute an”act of aggression”. The second idea was that if he entered on invitation of Arab population of Palestine his act might not constitute aggression. Parodi said he was inclined to second theory and thought conclusion to that effect would avoid endless argument. — Foreign relations of the United States, 1948. The Near East, South Asia, and Africa, page 946
     
     
    Here’s another:
    Memorandum by the Director of the Office of United Nations
    Affairs (Rusk) to the Under Secretary of State (Lovett)
    SECRET [WASHINGTON,] May 4, 1948:
     

    “The Jews will be the actual aggressors against the Arabs. However, the Jews will claim that they are merely defending the boundaries of a state which were traced by the UN and approved, at least in principle, by two-thirds of the UN membership. The question which will confront the Security Council in scarcely ten days’ time will be whether Jewish armed attack on Arab communities in Palestine is legitimate or whether it constitutes such a threat to international peace and security as to call for coercive measures by the Security Council. The situation may be made more difficult and less clear-cut if, as is probable, Arab armies from outside Palestine cross the frontier to aid their disorganized and demoralized brethren who will be the objects of Jewish attack. In the event of such Arab outside aid the Jews will come running to the Security Council with the claim that their state is the object of armed aggression and will use every means to obscure the fact that it is their own armed aggression against the Arabs inside Palestine which is the cause of Arab counter-attack.

     
    The internal memo was published in the Foreign relations of the United States, 1948. The Near East, South Asia, and Africa , Volume V, Part 2, page 848
    Analysis of the memos is contained in “The British Empire in the Middle East, 1945-1951″, William Roger Louis, Oxford University Press, 1984, ISBN: 0198229607, page 545; Zionism and the Palestinians, Simha Flapan, Croom Helm, 1979, ISBN: 0856644994, Page 336; and Fallen pillars: U.S. policy towards Palestine and Israel since 1945, Donald Neff, 2nd Edition, Institute for Palestine Studies, 1995, ISBN: 0887282598, page 65.

  27. Re: In any event, while being a guiding principle of the UN Charter, a legal right to self-determination itself was yet to form (see e.g. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal 37-43 (1995);
     
    With all due respect, one of the objections to the UN Mediator’s proposal for a union between Transjordan and Arab Palestine was that some of the UN delegations did not recognize the right of the General Assembly to go on making recommendations after the peoples living there had been emancipated from the international mandate and could decide the question for themselves. See UN Document A/AC.25/W/19, 30 July 1949, “The Future of Arab Palestine and the Question of Partition”
     
    Ernest Gross, a Legal Counsel to the US State Department, wrote an advisory opinion at the time which explained that, in the absence of the mandatory or other administration, the law of nations recognized the inherent right of the people of the “communities” mentioned in the mandate to organize a state and operate government in the areas that they inhabited. He pointed out that Transjordan was an example of one of the communities that had been subject to the terms of the mandate. See “Memorandum by the Legal Adviser (Gross) to the Under Secretarry of State (Lovett)’ May 13, 1948. Recognition of Successor States In Palestine, in Foreign relations of the United States, 1948. The Near East, South Asia, and Africa, starting on page 960
     
    The US State Department recognized the King’s sovereignty in line with the principles underlying the resolution of the Jericho Congress. See Foreign relations of the United States, 1948. The Near East, South Asia, and Africa, page 170
     
    Secretary of State Acheson subsequently stated at his April 26, 1950 press conference that:

        “The elections which were held on the 11th were on the basis of the incorporation of Arab Palestine into the Hashemite Kingdom. Those elections have taken place and this action of the parliament will be to ratify that decision. Now, our American attitude is that we have no objection whatever to the union of peoples mutually desirous of this new relationship.
     
    Whiteman’s Digest also cited the Jordan and Israel (Government Decision) HC Deb 27 April 1950 vol 474 cc1137-41 which based recognition upon the fact that the Act of Union had been adopted unanimously by the Jordan Assembly, which was composed of elected representatives of both the territories. See pages 1163-1168 “Acquisition of Sovereignty Over Territory”, Marjorie M. Whiteman (editor), Digest of International Law, vol. 2 (Washington, DC: U. S. Government Printing Office, 1963)
     
    So, there is ample contemporary evidence of state practice to support the legal right of the communities to organize a state and operate a government after the mandate regime was terminated.

  28. Hostage wrote “…the Rome Statute which explicitly state that all military occupations are illegal or that an occupation in violation of the UN Charter in illegal.” Maybe smarter minds can assist me here, but I just could not find anything in the Rome Statute that remotely says anything about all military occupations are illegal. Furthermore, can some explain to me what a legal occupation is or would look like? And if occupation is illegal, then why does the Fourth Hague Convention provide legal guidance on occupation; and why is the entire Fourth Geneva Convention dedicated to governing occupation if it were illegal. In other words, why write a treaty to govern something that is illegal?  

  29. Occupation is not per se illegal under IHL. Certain activities during occupation — such as annexation, transfer of civilians into occupied territory, etc. — are.

  30. That said, in the present era, occupation is very likely to run afoul of the jus ad bellum. Even if an initial occupation is lawful self-defence, the jus ad bellum‘s necessity and proportionality requirements make it essentially impossible to justify maintaining the occupation long-term. Contra Ori, therefore, it is irrelevant whether the initial occupation of the West Bank can be defended on the basis of self-defence; even if it could, the fact that the ongoing occupation “derives from” the initial defensive act does not render it legal. Whatever justification existed for the initial occupation (and to be clear, I do not think there was any such justification) has long since ended.

  31. Re: Hostage wrote “…the Rome Statute which explicitly state that all military occupations are illegal or that an occupation in violation of the UN Charter in illegal.”
     
    I meant to say that there are several multilateral anti-war and conciliation treaties – including the Montevideo Convention, and the OAS Charter – and the Rome Statute. Between them all they either explicitly state that all military occupations are illegal or that an occupation in violation of the UN Charter is illegal. The Rome Statute is an example of the latter, based on the General Assembly’s Definition of Aggression. On the other hand, the prohibitions in the Montevideo Convention and the OAS Charter did not admit any exceptions.
     
    Mary Ellen O’Connell, published a paper for an American Society of International Law task force, “The Myth of Preemptive Self-Defense” (pdf). O’Connell said that in the past commentators had defended Israel’s attack on Egypt on the grounds that it was anticipatory self-defense. She cited contrary evidence, like General Rabin’s remarks in the now infamous Le Monde interview, and said: “Israel stated that it had convincing intelligence that Egypt would attack and that Egyptian preparations were underway. We now know that the Israel acted on less than convincing evidence. Thus, the 1967 Arab-Israeli war does not provide an actual example of lawful anticipatory self-defense.”
     
    That raises the issue of the Article 40, Chapter VII obligation under UN Security Council resolution 73 to observe the permanent armistice line of demarcation and the prohibitions against annexation of territory acquired by war contained in the UN Charter and relevant UN resolutions. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations addresses both issues. It says that:

    Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. . . .
    . . . The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.
     

    In another thread Carl Meyer pointed out that Security Council resolution 476 reaffirmed the overriding necessity to end the occupation without reference to any condition and deplored Israel’s continued refusal to comply with the relevant resolutions of the Security Council and the General Assembly. I pointed out that the General assembly had repeatedly demanded the immediate and unconditional withdrawal of Israel’s armed forces and that it had declared the continuing occupation was a violation of the terms of the Charter and amounted to aggression as defined in Resolution 3314 (XXIX) Definition of Aggression.

     
    In the “Voting Procedure” case, Judge Lauterpacht addressed the cumulative legal effect of a succession of recommendations, on the same subject and with regard to the same State, solemnly reaffirmed by the General Assembly:

        ‘[A] … State may not be acting illegally by declining to act on a recommendation or series of recommendations on the same subject. But in so doing it acts at its peril when a point is reached when the cumulative effect of the persistent disregard of the articulate opinion of the Organization is such as to foster the conviction that the State in question has become guilty of disloyalty to the principles and purposes of the Charter. Thus [a] . . . State which consistently sets itself above the solemnly and repeatedly expressed judgement of the Organization in particular as that judgement approximates to unanimity, may find that it has overstepped the imperceptible line between impropriety and illegality, between discretion and arbitrariness, between the exercise of the legal right to disregard the recommendation and the abuse of that right, and that it has exposed itself to consequences legitimately following as a legal sanction.
     

  32. P.S. I recognize that the amendments to the Rome Statute that make military occupations in violation of the UN Charter a punishable offense have not entered into effect for the ICC.
     
    But the Rome Statute is simply reciting a customary definition that appeared in General Assembly resolutions on the Definition of Aggression and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. Any state could employ those in the exercise of its own jurisdiction.
     
    In R. v Jones, one of the Law Lords advised: “… [T]hat the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.”

  33. @Kevin – I should note that I despise the ongoing occupation (and even more so the continued settlement construction) and am not trying to defend it from a legal or moral perspective. Thankfully, the proportion of the population in Israel that call the West Bank by any other name is a significant minority. But getting back to the law. Kevin, you said that “in the present era, occupation is likely to run afoul of the jus ad bellum.” But aren’t you mixing the jus ad bellum and jus in bello regimes here? Meaning, you cannot have an occupation without resorting to an armed conflict first, however justified or not. Further, how can the jus ad bellum principles of necessity and proportionality be incorporated into an assessment of maintaining an occupation for any period of time? Occupation and occupation law exist in the framework of an armed conflict where jus ad bellum no longer applies.
    @Hostage – So which is it? All military occupations are illegal or just those that violate the UN Charter? I don’t see how an occupation can violate the UN Charter given use of force and armed conflict comes first (which would be the trigger for unlawfulness if applicable), then only if effective control is present does the regime of military occupation apply pursuant to GC IV which does not govern an illegal situation. This seems like putting the cart before the horse, no? Both you and Kevin insist that a military can implement occupation from the first use of force. 

    If all military occupations are unlawful, then what does this do to the Fourth Geneva Convention? Render it useless? 
    And since when do General Assembly resolutions create customary law? “…[T]he Rome Statute is simply reciting a customary definition that appeared in General Assembly resolutions of the definition of Aggression…” Given that UNGA Res. 3314 was adopted without a vote, how can we measure the requisite opinio juris as the ICJ correctly did in the Nuclear Weapons Advisory Opinion? And this is besides the highly questionable state practice that has emerged since then. 

  34. Hostage@ and Israeli@, I didn’t write that sentence but simply pasted and copied a passage taken from the second part of the article that we are discussing. I think that it is also relevant for the answer that Israeli@ is searching for:
    “It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law - does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan [...]
    The “disputed territories” logic is based on a selective use of international consensus. A good example is provided by the Palestinian village of Umm Rashrash, present-day Eilat. It was taken by the Negev and Golani Brigades on March 10, 1949, eight months after the United Nations Security Council’s resolution No. 54 called for a ceasefire, forbidding any acquisition of territory from that date on.
    It is only thanks to an established international consensus – expressed by 160 countries – that Eilat is today legitimately part of the State of Israel. The same international consensus established the illegality of settlements as well as of the occupation of the Palestinian territories. UNSC’s resolution n. 476 (1980) pointed out for example that the “acquisition of territory by force is inadmissible” and reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem”. This was a simple call for withdrawal, without reference to any condition. It is not possible to invoke international consensus over Eilat (and other areas), while disregarding it for the West Bank and East Jerusalem”.
    http://opiniojuris.org/2014/01/09/eu-adopting-double-standards-approach-toward-israel-palestinian-territories-part-2/

  35. Israeli,

    No, I don’t think I’m mixing them. Regardless of whether the occupation can be justified under the jus ad bellum, it must comply with IHL. My point is that although it is possible to imagine an occupation that is lawful under the jus ad bellum — say, a state crossing into a neighbouring state and temporarily controlling territory that a non-state actor is using as a base for armed attacks — the requirements of proportionality and necessity continue to apply. So once the armed attacks that gave rise to lawful self-defence cease, the occupation must end. That’s the problem with Ori’s mistaken argument that Israel’s occupation of the West Bank is legal because it (arguably; I don’t agree) “derives from” a lawful act of self-defence. There is no doctrine of “derived from” in international law; once the occupation was no longer necessary to (supposedly) defend Israel from armed attack, Israel had to withdraw from the West Bank. The occupation is thus currently illegal under the jus ad bellum, and it has been for a long time — particularly in terms of Israel’s annexation of territory, which is per se illegal under international law. The occupation is also, and independently, illegal under IHL for a variety of reasons, such as the transfer of Israeli civilians into occupied territory.

    (I perhaps blurred the lines between the jus ad bellum and IHL with regard to annexation. But I’d argue that annexation is illegal under both regimes. That’s basically what the ICJ held in the Wall case.)

  36. Kevin,
    If I understand you correctly, you are saying that because (in your opinion) the initial use of force by Israel in 1967 was unlawful, that renders everything afterwards unlawful? Even though the jus in bello does not care who started the armed conflict or why?
    And if, according to you, the jus ad bellum principles of necessity and proportionality apply during armed conflict (which I believe is incorrect), then how do they interact with the jus in bello principles of necessity and proportionality? Clearly they are not the same.
    And where is it stated that “once the armed attacks that gave rise to lawful self-defense cease, the occupation must end.”? Again, while I do not advocate for continued Israeli occupation, I do not believe this is accounted for in GC IV. Aside from the fact, which you conveniently ignore, that Israel has been continuously attacked from the W. Bank (not anymore thanks to the security barrier) and Gaza Strip (even as of this morning while numerous dignitaries were visiting Israel for the former Prime Minister’s funeral).
    And given the resounding scholarly criticism of the non-binding Wall AO, I’m surprised it is still such an oft-referenced document. 
    In short, your logic seems to be that if the resort to force was unlawful, that any subsequent occupation is also unlawful. This was the same logic in the wonderful legal scholarship (sarcasm added) known as the Goldstone Report. Given they are governed by two distinct legal frameworks, I just can’t make sense out of this. This seems like a double-standard application of law here. 

  37. Israeli, I think that you put in Kevin’s mouth something that he didn’t claim (“your logic seems to be that if the resort to force was unlawful, that any subsequent occupation is also unlawful”).  Anyway, he will answer about it. What I want to point out is that when you refer to the pretext of the ”…continuously attacked” from Gaza you should always remember that: 1) The Gaza Strip is mainly inhabited by refugees, most of them belonging to the families kicked out and transferred by bus in 1948 from al-Jura, Najd and Majdal, the city that today you call Or HaNer, Sderot and Ashkelon (Majdal is included in present-day Ashkelon). It is there that you have to look if you want to understand the roots of the Gaza’s problem. 2) Israel’s ‘disengagement’ from the Gaza Strip did not constitute the end of occupation because, despite the redeployment of its military ground forces from Gaza, it retains and exercises effective control over the territory. 
     Furthermore, should we ignore ‘Wall AO’ just because it doesn’t fit your narrative? Can you point out the “resounding scholarly criticism” to which you referred to? 

    You continue to tell us that you “despise the ongoing occupation” but you continue to apply the same selective use of the international consensus and international law applied by the supporters of that very same occupation. Again, It is only thanks to an established international consensus – expressed by 160 countries – that Eilat is today legitimately part of the State of Israel. The same international consensus established the illegality of settlements as well as of the occupation of the Palestinian territories. UNSC’s resolution n. 476 (1980) pointed out for example that the “acquisition of territory by force is inadmissible” and reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem”. This was a simple call for withdrawal, without reference to any condition. It is not possible to invoke international consensus over Eilat (and other areas), while disregarding it for the West Bank and East Jerusalem

  38. Re: But aren’t you mixing the jus ad bellum and jus in bello regimes here?
     
    The Chapter VII provisional settlement imposed by UNSC Resolutions 62 and 73 was still in full force and effect, pending a final settlement. So, it did constitute an explicit jus ad bellum treaty obligation.
     
    @Hostage – So which is it? All military occupations are illegal or just those that violate the UN Charter? I don’t see how an occupation can violate the UN Charter given use of force and armed conflict comes first (which would be the trigger for unlawfulness if applicable), then only if effective control is present does the regime of military occupation apply pursuant to GC IV which does not govern an illegal situation. This seems like putting the cart before the horse, no?
     
    International law evolves over time. During the Nuremberg era Hersh Lauterpacht’s opinions in Oppenheim’s International Law, 6th and 8th Editions were cited to support the claim that Article 50 of the Hague regulations permitted reprisals and collective punishments against civilians, towns, and villages. That led to some acquittals and the adoption of Article 33 of the 4th Geneva Convention (1949), which aimed to prohibit the practice. The Security Council’s discretion to authorize military occupations can be restricted or prohibited in the same way.
     
    The Treaty of Versailles arraigned the Kaiser for waging war in violation of the sanctity of treaties. The Nuremberg Charter said that it was a crime to plan, prepare, or initiate a war in violation of international treaties, agreements or assurances. So the obligations are not strictly limited to the UN Charter. I think the parties to these other conventions I mentioned could prosecute officials of the other contracting states for the crime of aggression and that it would be up to the judges to decide at trial if Article 51 of the UN Charter provided an affirmative defense for pre-emptive or preventative wars and occupations. The Security Council remains unconditionally bound by the terms of customary international law. It has to consider evolving practice and evidence contained in other conventions on the subject of military occupation and the rights and duties of individual states. 
     
    The fact that GC IV provides rules for occupation regimes, does not imply that it can be employed to sanction any that have not been explicitly authorized by the UN Security Council. If there is a conflict between the two, the UN Charter obligation would prevail, according to the supremacy clause in Article 103 of the Charter.
     
    I don’t accept the proposition that Israel could unilaterally declare the international armistice agreements or the Chapter VII Security Council resolutions that imposed the measures “null and void”. The narrow exception contained in Article 51 of the UN Charter does not overturn the Article 2 prohibition of the use of threats or force against the political independence and territorial integrity of any other state.

  39. Re: Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law - does not justify the use of the expression “disputed territories” in place of “occupied territories.”
     
    FYI, the recent treaty between Palestine and Jordan seemingly reaffirmed an on-going confederation between the two states and the qualified nature of the 1988 Jordanian disengagement from the West Bank. The Jordanian Council of Waqf and Muslim Affairs still exercises jurisdiction over the Holy sites in East Jerusalem and its municipal laws are still applied with the consent of all the parties concerned. Israel has even employed them as the basis to create new “state lands” for its settlements in the West Bank. So I suppose that the ICC Prosecutor could obtain jurisdiction from its member state Jordan, since the Rome Statute applies, at least in theory, to any crimes committed on territory subject to a member state’s jurisdiction.
     
    The fact that the two peoples had a falling out years ago, doesn’t alter the fact that the inhabitants of the West Bank stated in the resolution of the 1948 Jericho Congress, and in the press, that they were taking pragmatic steps to save their remaining territory from conquest by forming a joint government. I’ve noted elsewhere that the Arab Higher Committee and the people of nearly every town and village had asked Transjordan and its Arab Legion to provide them with protection. There were Palestinian lawmakers, Prime Ministers, Foreign Ministers, and ambassadors. The rules of “belligerent occupation” don’t really apply to military allies or states in voluntary union with one another. The 1950 Declaration on the Unity of the Two Banks explicitly reserved rights in Palestine and the defense of all Palestinian rights by legitimate means, without prejudice to the final settlement of the Question of Palestine. See the articles “Jericho Declaration” and Hebron Mayor Challenges Egyptians to Tell Truth, in the Palestine Post, December 14th, 1948  and the text of the Declaration in Raja Shehadeh, “From Occupation to Interim Accords: Israel And the Palestinian Territories, page 78
     
    The UN admitted the new entity and even accepted the credentials of Palestinian members of the delegations that represented the government of Jordan for more than a decade. Jordan remains bound by the GC IV articles on non-renunciation and special agreements. The boundaries established in its peace treaty with Israel are without prejudice to the status of any territories that came under Israeli military government control in 1967.

  40. Carl, if Israel had effective control over the Gaza Strip, I promise you that not a single rocket would be fired into Israeli territory (like the two that were fired today in honor of PM Sharon’s funeral). But the IDF’s effectiveness aside, please explain to me where your new criteria of effective control emanate from, especially when the ICRC determines effective control to consist of: (1) “the overthrown government is unable to exercise its authority”; (2) “the occupying Power is in a position to fill that gap by exerting its own power” and “implies in principle that enemy troops should be deployed in the territory concerned and succeed in imposing the minimum stability that will allow them to exercise their responsibilities deriving from the law of occupation.” Then, the ICTY in both Blaskic and Naletilic determined that “Occupation exists when a State has ‘overall control’ of the local agents actually exercising ‘effective control’ over the territory in question.” 
    The Hamas government in Gaza runs a very tight ship (well no ships allowed, but you know what I mean). Explain to me how Israel or the IDF meet any of the criteria above. Then explain to me the role that Egypt plays in controlling the southern border.
    Hostage: As Caroline says anticipatory self-defense is permitted when the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” On the eve of War in 1967, there were amassed almost 500,000 Arab soldiers from 5 Arab armies on Israel’s borders. It is well documented that war was inevitable. I always find it amusing that the common theme amongst Israel’s detractors is that we never seem to have the right to self-defense. I wonder why that is.

  41. Israeli@
    Territory that was militarily conquered remains occupied until sovereignty supplants foreign control. As long as the Gaza Strip – that is part of a self-determination unit -  is non-sovereign, it is occupied, and as long as it is occupied its relationship to Israel continues to be governed by IHL (the Criminal Procedure Law of 2006, for example, allowed Israel to incarcerate Palestinians from the Gaza Strip suspected of criminal offences in detention facilities in Israel and to prosecute them in Israeli civil courts).
    Gaza (unilateral) withdrawal was a disengagement and not an end of accupation (Israeli drones monitor Gaza from the air, Israeli naval ships prevent Gazan fishermen from sailing more than 4 kilometers from shore..). On top of this, the wall and the evacuation of the ground settlements in Gaza were parts of the same national security logic of unilateral solutions that the settlements were – perpetuating and intensifying animosity and violence, rather than undoing them (and btw, in 2005 Sharon removed 7,000 settlers from Gaza, and simultaneously settled tens of thousands of others in settlements across the West Bank).
     
     

  42. Israeli, let me add 3 other points.
    1) You write: “I always find it amusing that the common theme amongst Israel’s detractors is..”. I don’t know to whom you were referring to. I speak for myself. Please don’t put other people in a useful (for you) box. I and many other people that have written comments here are not Israel’s detractors at all. I fully recognize Israel’s right to exist and to defend itself. I fully oppose Israel’s right to oppress other people. And I fully oppose people that adopt your same selective use of international consensus and law in order to justify the oppression of other human beings (human beings that already paid a huge price so that your dream could become true).
    2) Israeli military legislation initially accepted GCIV as lex specialis in the OPT, and therefore they were aware they the WB and Gaza were occupied territories. The fundamental postulate of the regime of belligerent occupation is that it is a temporary state of affairs during which the occupant is prohibited from annexing the occupied territory. The occupant is vested only with temporary powers of administration and does not possess sovereignty over the territory. See Ottoman debt arbitration (1925) 3 Annual Digest of Public International Law Cases 472 (1925-26); G. Schwarzenberger, International law as applied by international courts and tribunals. Vol.II: The law of armed conflict (Stevens: London: 1968), pp. 166-173; and UK Ministry of Defence, The manual of the law of armed conflict (Oxford UP: Oxford: 2004) 278-279, paras. 11(9)–11(11).
    3) Again, should we ignore ‘Wall AO’ just because it doesn’t fit your narrative? Can you point out the “resounding scholarly criticism” to which you referred to? Advisory opinions of the ICJ are not binding, but they nevertheless have normative force as they constitute an authoritative statement of international law in relation to the question posed.  Judge Gros of the International Court has observed that ‘when the Court gives an advisory opinion on a question of law it states the law’, and while ‘it is possible for the body which sought the opinion not to follow it in its action…that body is aware that no position adopted contrary to the Court’s pronouncement will have any effectiveness whatsoever in the legal sphere’. 
     

  43. Wow, I did not expect a couple of comments would prompt such response.
    Considering many of the subjects have been discussed by others, a few small points shall suffice.
     
    Concerning a prolonged occupation’s continuing legality, the argument concerning necessity and proportionality could be very true where the previous sovereign lawfully had title to the territory. Yet, as Hersch Lauterpacht (2 Oppenheim’s International Law 217-220 (7th ed. 1952)) opined, rights obtained by a State in armed conflict otherwise protected in IHL (a contrario to those norms of a humanitarian character) are not protected if obtained through aggression. In casu, Israel’s armed conflict with Jordan should have indeed completely conformed to the principles of necessity and proportionality, including vis-à-vis the capture of territories, were all of Jordan’s claimed rights obtained legally. However, Israel could not have been expected to return the territory it subsequently held to Jordan, as the latter lacked rights to it having obtained it through aggression. Thus, a legal void exists, which would necessitate State consent to create legally binding obligations for filling in.
     
    The Eilat-settlement/occupation analogy is incorrect as it confuses two different regimes of law. As evident from the Eastern Greenland case, international recognition is a particular element relevant to assessing whether title has been acquired through prescription (see also Malaysia/Singapore). (It is also interesting to note that under the principle of uti possidetis, an area such as Eilat would legally belong to Israel, and not Egypt or Jordan, in any event). Conversely, the question of the legality of settlements and occupation is one for general treaty and customary law (and it would appear there has been much discussion elsewhere on this site regarding the correct interpretation of those two on the subject matter).
     
     
    Finally, Kevin, I was initially unsure how to interpret the branding of my opinions as “ultra-right”. However, it would appear this description can’t be too bad since it covers the likes of Sir Elihu Lauterpacht and former ICJ president Stephen M. Schwebel – of the world’s most highly respected international law scholars (more likely is the explanation that my opinion is simply conservative and absent in most of today’s law faculties).

  44. Israeli,

    As Carl points out, that is precisely the opposite of what I said. IHL applies to all occupations, legal or illegal. The illegality of an occupation under the JAB does not render anything illegal under IHL; the NMTs specifically held as much after WW II with regard to the Nazi occupation of the Eastern Territories. I discuss those holdings in my book.

  45. Israeli,

    In order:

    1. Jus ad bellum rules apply to all uses of force. If an occupation’s continuing nature is justified as self-defence under the JAB, it must continually satisfy the JAB principles of proportionality and necessity. 

    2. Proportionality under the JAB is different than proportionality under IHL. Nothing I said indicates otherwise.

    3. Occupations are not permitted to be permanent. Once the legal justification for an occupation ends (and self-defence is really the only justification available these days), the occupation must end. See 1.

    4. Now it is you who are blurring the JAB and IHL. GC IV governs the conduct of occupation; it says nothing about whether the occupation is legitimate. See my previous comment.

    5. The intermittent armed attacks on Israel from West Bank clearly give rise to a right of self-defence, but continuing a massive occupation is just as clearly neither a necessary nor proportionate response to those armed attacks. The occupation is thus illegal, as every state in the world other than Israel acknowledges, including the US.

    6. By all means, cite the “resounding scholarly criticism” of Wall decision. You won’t find many scholars outside of Israel and its right-wing supporters who think it is fundamentally flawed, even if some IL scholars take issue with certain aspects of it. (Such as its conflation of the JAB and IHL.)

    7. Your unsupported broadside at the Goldstone Report is just sad. Are you one of those people who thinks Goldstone hates Israel (despite having been a trustee of HUJ)?

  46. Unlike Carl, I am not completely convinced that Gaza is still occupied by Israel. It’s very close, with good arguments on both sides. Two points, though:

    1. if it is not, then Israel’s blockade of Gaza is illegal and an act of war against the flag state of any ship interdicted by Israel (such as the Mavi Marmara). Blockade is only permissible in international armed conflict (see the Civil War cases in the US), and in the absence of occupation the only possible conflict between Israel and Gaza is non-international.

    2. It is well-established (following the NMTs after WW II) that a state can exercise effective control over territory without having boots on the ground as long as it has the ability to physically (re-)occupy the territory at any time. That is the strongest argument for why Israel still occupies Gaza. (Though, again, I’m on the fence about that issue.)

  47. Re: former ICJ president Stephen M. Schwebel – of the world’s most highly respected international law scholars (more likely is the explanation that my opinion is simply conservative and absent in most of today’s law faculties).
     
    I noticed that after Israel formally annexed Jerusalem and the Golan Heights, and started building civilian settlements, that both Lauterpacht and Schwebel stopped writing editorials about the subject.
     
    “What Weight to conquest” was originally published in The American Journal of International Law, Vol. 64, No. 2 (Apr., 1970), pp. 344-347. It was clearly labeled as an “Editorial Comment”. ASIL Editorial Comments are short unrefereed articles about current events. See 3. Editorial Comments and 4. Referees in “The American Society of International Law’s First Century: 1906-2006″, By Frederic L. Kirgis & The American Society of International Law, Martinus Nijhoff Publishers, 2006, ISBN: 9004150684
     
    A few months after the editorial appeared, the ILC finished work on its codification of the rules of law contained in the UN Charter. Shortly after that, the General Assembly incorporated them in the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970″ It said “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.
     
    In his 1986 article on “The International Status of Jerusalem”, Antonio Cassese wrote that Robert Jennings (author of “The Acquisition of Territory in International Law”, Manchester University Press, 1963 and editor of several volumes of Oppenheim’s International Law, London, Longman) was recognized as the great authority on the acquisition of territory in international law. Jennings explained in 1963 (see pages 54-57) that as a result of developments in customary international law and the adoption of the UN Charter “conquest as a title to territorial sovereignty had ceased to be a part of the law.” Jennings cited Hersh Lauterpacht’s work on the International Law Commission (ILC) in which he had explained that, even when force is used against an aggressor, the fact of aggression itself is irrelevant in deciding the legal remedies. They do not include acquisition of title to territory through a treaty settlement imposed by or as the result of force or the threat of force. Cassese wrote that it does not follow from Schwebel’s premise that either Jordan or Israel had acquired sovereignty over any territory through the use of military force.
     
    FYI, Judge Schwebel served as the United States representative on the UN Special Committee on the Question of Defining Aggression. He noted that when the General Assembly adopted the consensus definition, it was concluding more than fifty years of sporadic discussions among the members of the international community of states on that subject. The definition included military occupation and blockade in violation of the Charter as specific examples of aggression.
     
    In an essay written shortly before the General Assembly adopted the definition, he cited the example of Israel’s disputed statehood in 1948 and said there was nothing to prevent members, and everything to compel them, to interpret “States” as embracing entities whose statehood is disputed. He said it would be pedantic literalism to maintain that an entity whose statehood is disputed is excluded from the reach of Article 2, paragraph 4 of the Charter. He said that was amply demonstrated by the events of the postwar years. The two largest armed conflicts of the time had involved violation of internationally agreed lines of demarcation – and there had been no lack of charges of aggression in those conflicts. Other actual and potential conflicts had involved entities not recognized as States by all concerned, sometimes, by any concerned. He said to exclude this kind of conflict is to ignore both history and current events. Schwebel said that such cases could be easily resolved by referring to the explanatory note in the General Assembly’s definition of aggression which says that the term “State” is used without prejudice to questions of recognition or to whether a State is a member of the United Nations. See “Justice in international law”, Cambridge University Press, 1994, ISBN 0521462843, page 573-574. Those arguments obviously could be applied to Jordan or Palestine. 
     
    Presumably the Judges of the ICC will be able to use the definition of the term “State” in the explanatory note to formulate their opinions, since the amendments to the Rome Statute on aggression use that term “in accordance with” General Assembly resolution 3314 (XXIX).  
     
    Abba Eban explained why disputes over the status of a territory should be irrelevant: “. . the theory that the Charter forbids acts of aggression only against States is utterly without foundation. Indeed, neither Chapter VI nor Chapter VII, in defining threats to the peace or acts of aggression, shows the slightest interest in the juridical status of the victim. The word “State” does not occur in either of those chapters. There is no provision whatever that the attacked party must be universally recognized as a State before an armed attack upon it can be determined as an act of aggression.

    Article 2, paragraph 4, of the Charter forbids the use of force not only if it is directed against the integrity of a State but also if it is used “in any other manner inconsistent with the purpose of the United Nations”. See the minutes of the 340th meeting of the UN Security Council, S/PV.340, 27 July 1948, page 12
     
    The ICJ cited a portion of Article 3 of the Definition of Aggression, which contains two occurrences of the term “State” as defined by the General Assembly, and said that it reflected customary international law. The Court said that “It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked.” See para 195 of the majority opinion in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
     

  48. Re: Hostage: As Caroline says anticipatory self-defense is permitted when the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” On the eve of War in 1967, there were amassed almost 500,000 Arab soldiers from 5 Arab armies on Israel’s borders. It is well documented that war was inevitable. I always find it amusing that the common theme amongst Israel’s detractors is that we never seem to have the right to self-defense. I wonder why that is.
     
    Maybe it’s because: “The Egyptian army concentrations in the Sinai approaches did not prove that Nasser was really about to attack us. We must be honest with ourselves. We decided to attack him.” – Address by Prime Minister Begin at the National Defense College- 8 August 1982
    In his autobiography, Rabin said the IDF GHQ Intelligence assessment was that Israel was facing a repetition of Operation Rotem (1960) – the last time that the entire Egyptian Army had been deployed in the Sinai and there had been no war. The IAF Chief of Staff agreed with the assessment. In 1960 Israel had been caught with its pants down, when the Egyptian Army deployed in the Sinai without any warning, but Nasser didn’t attack and war wasn’t inevitable. Ben Gurion decided not to call up the reserves and kept the public in the dark while deploying a skeleton defensive force. Egypt eventually withdrew and returned the units to their garrisons. See Uri Bar-Joseph, Rotem: The Forgotten Crisis on the Road to the 1967 War, Journal of Contemporary History, Vol. 31, No. 3 (Jul., 1996), pp. 547-566
     
    Col. Ami Gluska wrote, that on Friday, June 2, 1967, at 9:25 a.m., the expanded Israeli Ministerial Committee on Security met with the Israeli General Staff forum in the Pit war room. None of the military leaders expressed concern that Israel faced an instant or overwhelming threat. Rabin characterized the Sinai troop build-up and the closure of the Straits as “humiliating pinpricks” that would render the IDF’s long term ”deterrent capacity” worthless. During the meeting in “the Pit”, he and the other military leaders said they were afraid that it would appear that the government had lost confidence in the IDF, and that the significance of the closure of the Straits lay in the effect on Israel’s ”deterrent” capability. see The Rabin Memoirs, page 80-81; Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present, edited by Itamar Rabinovich, Jehuda Reinharz, pages 212-213; and Israel’s Decision To Go To War, June 2, 1967, by Col. Ami Gluska
     
    General Matti Peled summed-up the threat in that meeting: “We have heard something regarding [the Straits of] Tiran, which lost its significance long ago. It was not important to start with and is even less important now.” The entry of an Egyptian force into Sinai was nothing new for the IDF, having been anticipated and planned for in various exercises and war games. The only surprise, he stressed, was Nasser’s audacity, since it was well known that his army was not ready for war.

  49. Ori,

    1) Hersch Lauterpacht pointed out that “the fact of the absence of formally binding force does not exhaust the actual significance of an advisory opinion”. Be careful of not being selective also on the Lauterpachs. In the Wall advisory opinion, the ICJ affirmed that self-determination is a right erga omnes, whose realisation all UN member States, as well as all States parties to the International Covenants on human rights, have the duty to promote. Furthermore, Israel’s rejection of the applicability of human rights law in the OPT has been authoritatively rejected by the ICJ and by the wider international community. H. Lauterpacht, ‘The Security Council and the jurisdiction of the International Court of Justice’, in E. Lauterpacht (ed.), International Law: Being the Collected Papers of Hersch Lauterpacht. Vol. V: Disputes, War and Neutrality (Cambridge: Cambridge University Press, 2004), p. 224 at p. 228.

    2) As for the “the argument concerning necessity and proportionality could be very true where the previous sovereign lawfully had title to the territory”:
    The ‘missing reversioner’ argument was rejected by the ICJ; it ruled that the Convention applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. This interpretation was based on textual exegesis, the drafting history of the Fourth Geneva Convention, the practice of parties to the Convention, the views of the ICRC, General Assembly and Security Council, and also that of Israel’s High Court of Justice.  This was a unanimous finding by the Court, as the sole dissenting judge, Judge Buergenthal, expressly concurred in this ruling. This conclusion had also been foreshadowed in the September 1967 memorandum of the then legal advisor to the Israeli Foreign Ministry, Theodor Meron, which noted that the international community had rejected Israel’s claim that the territories were not occupied.
    Furthermore, Israel did not contest the lawfulness of Jordan’s control of the West Bank and clearly sought to conclude a peace treaty after the Six-Day War which would have returned the West Bank to Jordan, albeit with modified borders. Jordanian repossession of the West Bank was the premise of the diplomatic negotiations and exchanges which preceded the adoption of Security Council resolution 242. This surely amounts to an implicit recognition by Israel that Jordan possessed title to the West Bank, thus negating the contention at the core of the missing reversioner argument and the rationale for claiming that the Fourth Geneva Convention is inapplicable.

    3) As for Eilat, you are confusing international consensus with international law. When the US Security Council pointed out  that the “acquisition of territory by force is inadmissible” and reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem”, it was reflecting an international consensus, through a call for withdrawal, without reference to any condition. Uti possidetis was established for the purpose of avoiding terra nullius (as for the Roman Law’s times, it was required that the “territory” would have taken without any attack: aedes, quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quo minus ita possideatis, vim fieri veto). Eilat was taken eight months after the United Nations Security Council’s resolution No. 54 called for a ceasefire, forbidding any acquisition of territory from that date on.
    Finally, uti possidetis iuris is generally associated with the decolonisation process, and thus with the exercise of the right of self-determination. In the Case concerning the frontier dispute (Burkina-Faso/Mali), the International Court ruled:
    23.    …The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term…

  50. To all,

    I just want to commend the civil tone and the erudition in the comments to this post (and other recent ones). It’s unusual and refreshing. And I want to apologize to Ori for branding his views ultra-right; although references to Judea and Samaria are a pet peeve of mine, I should not have uncritically assumed he was simply parroting the ultra-right company line.

  51. Hostage, “the recent treaty between Palestine and Jordan seemingly reaffirmed an on-going confederation…”:
    I am not sure what your point is. True 1988’s statement excluded the Jerusalem holy sites. But this doesnt imply that Jordan has the right to rule over Palestinians. To me, the two-state solution is the first floor, and the federation is the second, one may imagine that the third floor will be a regional union, on the lines of the present European Union. But we cannot start from the roof, i.e. without the self-determination of the Palestinian people.

  52. Re: I am not sure what your point is. True 1988’s statement excluded the Jerusalem holy sites. But this doesnt imply that Jordan has the right to rule over Palestinians.
     
    I was thinking more along the lines of maintaining continuity of jurisdiction in order to avoid adversely effecting the rights of protected persons,  regardless of their Jordanian or Palestinian nationality. I believe that when there is a genuine issue regarding a material fact, like the “disputed” status of a territory, it should be decided by a judge or jury, e.g. See The Prosecutor v. Slobodan Milosevic – Case No. IT-02-54-T, Rule 98 bis test – Deportation, forcible transfer and cross border transfer – Definition of a State.
    I agree with Dov Jacobs that there is no mention of material jurisdiction in Article 12 of the Rome Statute. It’s territory or nationality.  On it’s face, this new agreement recognizes Jordanian territorial jurisdiction over 144 dunums of mosques, buildings, walls, courtyards, attached areas over and beneath the ground and the Waqf properties tied-up to “Al Haram Al Sharif” – based upon continuity of custodianship that dates back to a declaration made by the people of Jerusalem and Palestine in 1924. It notes that the custodianship also encompasses the “Rum” (Greek) Orthodox Patriarchate of Jerusalem that is governed by the Jordanian Law No. 27 of the year 1958. 
     
    Article 9 of the Treaty with Israel cited the Washington Declaration, and contained an affirmation that Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem.
     
    The ICJ outlined a similar line of continuity in its analysis of the international protections for freedom of movement and access to the holy places in paragraph 129 of the Wall AO. It started with recognition ab antiquo and cited Article 62 of the Treaty of Berlin (1878) as the most recent example of international recognition. It stepped forward from there through the safeguarding clauses for “existing rights” in Article 13 of the Mandate (which applied to both Palestinians and Transjordanians) and the Chapter on religious groups and minorities in the UN partition plan, then on to the guarantee contained in the armistice agreement – and winding up with Article 9 of the treaty of peace between Jordan and Israel.  
     
    The latest agreement between Palestine and Jordan says that it reflects the parties intention to establish “legal obligations” and affirm the parties recognition of their “legal status”. Article 2.1 makes Jordan responsible for legally representing the Waqf territory in international forums and organizations – and for managing the institution of Waqf in Jerusalem and its properties in accordance with the laws of the Hashemite Kingdom of Jordan.
    I think that was done intentionally to facilitate an ICC State referral should the need arise. I noted earlier that Article 3(2) of the treaty with Israel said the boundary was without prejudice to the status of any territories that came under Israeli military government control in 1967.
     
     
     
     

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