Government Committee: says 'Israel not occupation force'

[Reffo]

Right. The text which followed it, which for some reason you decided to ignore, was the logical argument supporting my opinion. Is there any reason in particular you decided to do that?

I didn't ignore your argument. I responded to it. Read my post more carefully. But I felt the need to also respond to your self congratulatory dismissal of what I posted. After all, you cannot be judge jury and executioner rolled into one. Why don't you just respond and let others judge what is "bizarre" or not?

Nothing at all - just that they shouldn't be lumped together in the same basket. Their arguments proceed along very different routes, and so one shouldn't expect them to be addressed together by scholars

OK then why don't you address each of them separately. I actually emphasized Rostow's arguments more yet you chose to address professor stone's argument. I have no problem with that. And I will respond to your response too. In the meanwhile, it would be nice if you could quote some of your scholars, preferably with links, who address Rostow's arguments.

I gave you my take on why Rostow's views make very little sense. The fact that you ignored my comments doesn't mean I dismissed his views

And you have ignored everyone of my counter arguments. Moreover, by your own admission you have not quoted a single scholar who was able to dismiss Rostow's legal opinions.

Not sure. You could try searching Google Books or Google Scholar, they sometimes give limited free access. However in general books and academic journals are only open to subscribers of academic databases, which I have access to because my university subscribes to them

I could. But since you are the one who quoted them, common courtesy would suggest that you should be the one to provide links to your sources.

Right. An opinion supported by reasons. That's what debate is all about, no? Am I meant to debate without stating my opinion? I don't think that will work.

Supported by facts? That's another one of your opinions. Why don't you present what you present and let others judge whether what you provide actually support your claims? Stop being so self congratulatory and dismissive of other's opinions. It just rubs people up the wrong way ( certainly it rubs me the wrong way). Is that what you want?

[Reffo]

Let's assume the West Bank's status is unclear, if you like. Fine. That doesn't mean Israel has sovereign title

I did not claim that it does. Stop putting words in my mouth. However, Israel has the right to administer the land according to the laws of the land. Which according to Rostow, the laws of the British mandate.

and it doesn't mean Israel is no longer a belligerent occupant. Its administration of the territory is clearly governed by the law of occupation, as the Israeli Supreme Court recognises. That means that it is bound by article 49(6) of the Fourth Geneva Convention and that it is not permitted to transfer its population into the occupied territory. That's what it comes down to after we put aside the theoretical debates over what entity has the best claim to the West Bank. And your accusing me of trying to "muddy the waters" is entirely unfounded. You are completely selective and hypocritical in your approach to the West Bank. You observe that Jordan had no authority to pass sovereignty because its own sovereignty was not recognised by the international community - so suddenly the opinions of the international community are good and valid to constitute law? What about the fact that the international community regards the West Bank as occupied territory and the Israeli settlements as illegal? In fact, more states recognised Jordan's annexation than states recognising the legality of Israel's settlements at the moment.

I have already answered that one. See above. I won't repeat myself.

I think the most plausible interpretation, which was put forward by Israeli academics in the 1950s and is still supported by Yoram Dinstein, is that the armistice agreements defined Israel's international boundaries. "Recognition" or "non-recognition" is completely irrelevant - to use the legal terminology, recognition is declaratory (i.e. it declares an existing state of affairs - which exists regardless of the recognition), not constitutive (i.e. recognition does not CONSTITUTE the legal reality)

On what basis? Quote and link please. The armistice agreement of 1949 is a legal document and it clearly states that it is not an international border. I will find a link and place a quote to support my claim, shortly.

Here it is:

The agreement with Jordan was signed on 3 April 1949.[3] The main points:
no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations[

1949 Armistice Agreement

As per usual, you label everyone who disagree with you - academics and judges from very diverse backgrounds who are openly pro-Israel on many issues - as being corrupt, politicised, unscholarly (that's the implication from you use of quotation marks when referring to "scholars"), etc. You complain about my supposed failure to address your two legal arguments (which I have addressed...) and then entirely fail to address the substance of the quotes from highly reputable legal authorities and resort to attacking their character. Not very persuasive, Reffo.

Fair point. But no more than you do. Moreover, you were the one who started this process right at the beginning of this thread when you commented on the Levy report. And you continued doing the same thing ever since. I just followed your example. I will stop if you will stop.

[curlyg]

I've found a freely available version of Dinstein's analysis (citing the older Israeli scholars like Rosenne) as to why the armistice lines constituted boundaries in their view. The point is made somewhat less forcefully that in some of the journal articles I saw, but it will do:

http://books.google.com.au/books?id=...page&q&f=false

Page 45 onward.

[curlyg]

I did not claim that it does. Stop putting words in my mouth. However, Israel has the right to administer the land according to the laws of the land. Which according to Rostow, the laws of the British mandate.

Which is a completely implausible argument for the reasons I've put forward: (1) Show me a domestic law on the books in Palestine that says all Jews have a right to settle anywhere; (2) It's impossible to rely on the terms of the mandate instrument because the instrument has lapsed and did not enter into domestic law; (3) most decisively of all, you can't rely on a rule of domestic law to justify violation of a rule of international law. This is an extremely well established principle of international law.

[curlyg]

I didn't ignore your argument. I responded to it. Read my post more carefully. But I felt the need to also respond to your self congratulatory dismissal of what I posted. After all, you cannot be judge jury and executioner rolled into one. Why don't you just respond and let others judge what is "bizarre" or not?

You certainly didn't respond to it. I quote:

Again, a fairly baseless legal argument. Even if we accept that the laws of the British mandate apply, and even if we accept that the expulsion of Jews gives rise to a right for any Jew to settle anywhere in Palestine (I feel absurd just saying that), and even if we accept that there is a specific law on the books in the Palestinian territory that gives Jews the right to settle in Palestine (which despite asserting, you have yet to prove) -- this still would not allow Israel to escape its obligations under international law, which entails a prohibition of transferring its population to the West Bank. I have said it before and I will say it again, it is a really basic principle of international law that you can't rely on the domestic laws of a country to violate international law. Even if Palestine's domestic law gives Jews a right to unlimited settlement, international law still prohibits Israel from transferring its population into the occupied territory... There's a reason nobody but Rostow has relied on this argument - it makes very little sense.

To which I received no response.

And you have ignored everyone of my counter arguments. Moreover, by your own admission you have not quoted a single scholar who was able to dismiss Rostow's legal opinions.

The fact that Rostow is the only person who made that argument should tell you plenty... Recall what I said regarding the position of eminent scholars in international law at the start of this debate. Why do you think it is that not a single other eminent authority, either pro or anti settlements, has made this argument? By the way, I do recall that John Quigley briefly considered and rejected Rostow's argument in one of his books, but he's clearly a partisan and so I haven't brought him into this. Also I don't consider him a reputable authority on the subject. There's frankly no comparison, in terms of their stature in international law scholarship, between people like Quigley and Rostow, as compared with Julius Stone or Dinstein or some of the other 'big names' we've been discussing. I don't want to dismiss Rostow's arguments just on that basis alone, and I've given my reasons - I just want to make clear that as far as international law is concerned, we're talking about two completely different orders of authoritativeness. And for what it's worth, I do consider Rostow to be far more reputable than Quigley.

I could. But since you are the one who quoted them, common courtesy would suggest that you should be the one to provide links to your sources.

I did provide links in the original post. Some of them are freely accessible (e.g. the Cassese one), while others arent. Unfortunately, I'm not a magician - and academic content is generally not freely available. Nothing I can do about that.

Supported by facts? That's another one of your opinions. Why don't you present what you present and let others judge whether what you provide actually support your claims? Stop being so self congratulatory and dismissive of other's opinions. It just rubs people up the wrong way ( certainly it rubs me the wrong way). Is that what you want?

I've been doing that. Your response seems to be to just ignore what I write...

[Reffo]

Which is a completely implausible argument for the reasons I've put forward: (1) Show me a domestic law on the books in Palestine that says all Jews have a right to settle anywhere; (2) It's impossible to rely on the terms of the mandate instrument because the instrument has lapsed and did not enter into domestic law; (3) most decisively of all, you can't rely on a rule of domestic law to justify violation of a rule of international law. This is an extremely well established principle of international law

I will. It is in the text of the League of nations. I will find a link and post it.

Here it is:

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country;

Mandate For Palestine

And like Rostow said, the laws of the British mandate never lapsed in the West Bank because no one has yet had legal sovereignty over the West Bank since the end of the Mandate. So how could any new laws supersede it? By what authority?

[curlyg]

And by the way, I'm pretty close to giving up on this discussion at this stage.

Let's get some basic points straight:

(1) Do you dispute that the West Bank is occupied territory?
(2) Do you dispute that article 49(6) of the Fourth Geneva Convention applies to occupied territories?
(3) Do you dispute the interpretation of article 49(6) supported by the various scholars I quoted, to the effect that settlements established by government which encourage or assist large movements of population from the occupying power to the occupied territory are illegal?
(4) Accepting at face value Rostow's legal argument, do you dispute that you can't rely on a rule of domestic law to justify violation of a rule of international law, i.e. art 49(6)?

[Reffo]

Which is a completely implausible argument for the reasons I've put forward: (1) Show me a domestic law on the books in Palestine that says all Jews have a right to settle anywhere;

See my post #66 above.

(2) It's impossible to rely on the terms of the mandate instrument because the instrument has lapsed and did not enter into domestic law;

Says who? Quote and link please. Rostow certainly disagrees with your assertion.

(3) most decisively of all, you can't rely on a rule of domestic law to justify violation of a rule of international law. This is an extremely well established principle of international law

No international law has been violated. I have explained why above but you keep on ignoring or dismissing my explanations.

Your attempt to claim that the Geneva convention has been transgressed because an occupier mustn't transfer it's own citizens into occupied territories, is a furphy. Israel has not transferred it's own citizens, it allowed Jews, many whom are dual citizens to buy lands in the West Bank. Which in turn is clearly allowed according to the prevalent domestic laws. In fact, Israel has no right to interfere with those domestic laws unless they involve security matters.

The above will only change when a new sovereign power will assume power over the West Bank. After a negotiated agreement.

Now, if the occupier would be another power, say Russia, and if it would transfer Russian citizens into the West Bank. Not Jewish Russians. Then you would be right because nowhere in the laws of the British mandate was it said that Palestine would be earmarked for the Russians.

Or even Israel allowing say Korean citizens to purchase lands in the West Bank, then Israel would be in breach (probably) again because no provisions were made for Koreans to live in Palestine.

[curlyg]

Mandate For Palestine

And like Rostow said, the laws of the British mandate never lapsed in the West Bank because no one has yet had legal sovereignty over the West Bank since the end of the Mandate. So how could any new laws supersede it? By what authority?

The mandate itself has lapsed. I don't see how you can derive any rights from the mandate instrument. Likewise, the mandate instrument has not, as far as I can tell, been incorporated into Palestinian domestic law. As a result it's not a plausible source of legal rights either under international law or under Palestinian domestic law. Even if it were, which is highly implausible given what I've just said, the mandate instrument also provides that nothing should prejudice the rights of the Palestinian Arabs - and I daresay that continuing to expand into Palestinian territory after a sovereign Jewish state has already been established over most of the Palestine mandate infringes the basic right of the Palestinians to self-determination. But that's really just theory, because the mandate instrument is no longer in force.

[Reffo]

(1) Do you dispute that the West Bank is occupied territory?

Only privately owned Arab land is occupied territory. Crown lands and lands which have Jewish title holders (privately owned Jewish lands) in the West Bank, are not occupied lands. It is more accurate to say that crown lands are disputed lands.

(2) Do you dispute that article 49(6) of the Fourth Geneva Convention applies to occupied territories?

No. And that's why I said above, several times, that any Jewish settlements on privately owned Arab lands ARE illegal.

(3) Do you dispute the interpretation of article 49(6) supported by the various scholars I quoted, to the effect that settlements established by government which encourage or assist large movements of population from the occupying power to the occupied territory are illegal?

I don't dispute it in general. However I do dispute that it applies to ALL of the West Bank and I stated my reasons above

(4) Accepting at face value Rostow's legal argument, do you dispute that you can't rely on a rule of domestic law to justify violation of a rule of international law, i.e. art 49(6)?

I most certainly DO dispute that. Unless security matters are involved.

[Reffo]

The mandate itself has lapsed. I don't see how you can derive any rights from the mandate instrument.

Yes, you keep on repeating that as a mantra. But I told you several times that the LAWS of the mandate have not lapsed. Don't you know that laws can last beyond administrations? As long as someone else is there to administer them. There are plenty of examples of this elsewhere in the world.

Likewise, the mandate instrument has not, as far as I can tell, been incorporated into Palestinian domestic law

What do you mean by "Palestinian domestic law"? There has never been a legal sovereign entity called Palestine other than during the British mandate.

As a result it's ...

There is no "as a result" for the reasons that I stated above.

[Reffo]

Now back to our thought experiment. Since you accused me of not responding to your points, which I certainly endeavoured to do, could you please respond to these questions of mine?

Arguably it could not do so, since it [Jordan] is an occupying power. However, it could be argued that in view of Palestinians' as of yet unfulfilled right to self-determination, and the fact that Jordan would not be transferring its own population/nationals but rather Palestinian nationals into the territory, it may be permissible. I can't claim to give you an authoritative legal opinion on the matter. But this is a completely different situation to the one that Israel finds itself in, where it is clearly transferring its own population into the occupied territory in clear violation of the rule

The situation is not necessarily different. Under the scenario that I painted, the Jordanians would transfer Palestinian Arabs who never lived in the West Bank and who have no title deeds to any parts of the West Bank. And many Jews too who now live in the West Bank were originally citizens of other countries or dual citizens. Not all but many.

So stop obfuscating and tell us why Israel's right should be lesser than Jordanian rights in the scenario that I gave you.

PS
Your answer in bold is the only consistent bit in your answer. The rest is obfuscation. Given your position about what Israel could or could not do. However, I actually disagree with you. IMHO (and it's not just mine), Israel's settlements are not illegal (except the ones, if any, that have been built on privately owned Arab lands). And by the same token, Jordan would be within it's right to establish Arab settlements, populated by Palestinian Arabs, in the West Bank in the scenario that I painted.

I have asked you this in my Post #59 and I am eagerly awaiting your response.

[dayag]

And by the way, I'm pretty close to giving up on this discussion at this stage.

Let's get some basic points straight:

(1) Do you dispute that the West Bank is occupied territory?
(2) Do you dispute that article 49(6) of the Fourth Geneva Convention applies to occupied territories?
(3) Do you dispute the interpretation of article 49(6) supported by the various scholars I quoted, to the effect that settlements established by government which encourage or assist large movements of population from the occupying power to the occupied territory are illegal?
(4) Accepting at face value Rostow's legal argument, do you dispute that you can't rely on a rule of domestic law to justify violation of a rule of international law, i.e. art 49(6)?

1. Yes, the Palestinians are not a sovereign independent people. The partition resolution of the UN was NON-BINDING. Israel is the ONLY independent state with a claim on the territories.

2-4 see below:

Article 49 applies between states – ie so-called ‘High Contracting Parties’. It forbids a sovereign state from “deporting or transferring parts of its own civilian population into the territory it occupies”. Earlier on the Article describes such transfers as “forcible transfers”. The purpose of the Article, according to the International Red Cross guidance (see www.icrc.org, cited by the Israeli Foreign Ministry), has always been to protect civilian populations from being forcibly relocated against their will by their own country into the territory of a state which had been conquered.

The West Bank is not a ‘High Contracting State’: Firstly, the territory to which the settlers have moved is, as we explained the response to argument 2 above, not sovereign Palestinian territory, but “disputed territory” whose final status has still to be decided by agreement. The Geneva Convention applies to the territory of High Contracting States – ie recognised sovereign states. It is highly questionable whether the Fourth Geneva Convention applies even in principle to such territory.

It is forcible transfers of civilian populations to occupied territory, not voluntary settlement, which is made unlawful: Even if the Geneva Convention does apply, Article 49 was enacted to prevent an occupying power from forcibly moving part of its own population against their will to another sovereign territory. Germany had done this repeatedly before and during the Second World War, when it carried out forced population transfers of German nationals into occupied Poland, Czechoslovakia and Hungary. Article 49 was designed to render such acts illegal in the future. But the Israeli settlers move voluntarily – they have not been coerced into doing so.

The Article applies to the movement of a civilian population into genuinely alien territory, not territory from which they were criminally expelled: Article 49 does not render illegal the return of civilian populations to places from which they were criminally ousted in the first place (eg Jews re-establishing a presence in Kfar Etzion or in Hebron)

There has been no displacement of Palestinians as a result of settlements as such: It is implicit in Article 49 that the forcible transfer needs to force out parts of the previously present population, and replace them with the alien population. But Palestinians have not been forcibly displaced as a result of Jewish settlements. The Palestinian Arab population of the West Bank has soared during the 42 years that Israel has been present in the territories, as has Palestinian Arab life expectancy. There has been no replacement of the Palestinian Arabs by the Jews, nor forced expulsion.

The establishment of Jewish settlements in the West Bank is thus not a violation of the 1949 Geneva Convention. Article 49, properly read and interpreted, has no application to the Jewish settlements. It was enacted for a completely different purpose.

source: http://www.beyondimages.info/b247.html

[dayag]

...Even if it were, which is highly implausible given what I've just said, the mandate instrument also provides that nothing should prejudice the rights of the Palestinian Arabs - and I daresay that continuing to expand into Palestinian territory after a sovereign Jewish state has already been established over most of the Palestine mandate infringes the basic right of the Palestinians to self-determination. But that's really just theory, because the mandate instrument is no longer in force.

The mandate was talking about the rights of Arabs as individuals not national rights since the land between the river and the sea was being established as the Jewish national homeland. The Arabs were given states in Transjordan, Syria, and Iraq and the Jews got Palestine.

The Palestinians do not have an absolute right to independence. All they have is a non-binding recommendation of the UN General Assembly that was forgotten until 1967. There are MANY nationalities, ethnic groups, etc. without an independent state. What about the Kurds? How about Kashmir? Tibet? Western Sahara? Corsica? the Basques?

But regardless, the Palestinians already control the Arab majority areas of the territories. As Pleepleus mentioned in another thread, that part of the West Bank that Israel retains control over is around 70 percent Jewish. If West Bank Palestinians "have a basic right of self-determination" then so do the Jews in Area C. Let us recognize Palestinian sovereignty in the areas they currently control, have a plebiscite in Area C, and then annex it in accordance with the wishes of the inhabitants.

The roughly 350,000 Israeli settlers currently make up around 70% of Area C's population. According to the UN, only 46,000 Arabs live in communities located entirely within Area C of the West Bank. That means with slight modifications to the Area C boundries, that area's population would be 88% Jewish!

source: http://www.israelforum.com/board/sho...l=1#post338764

[Reffo]

The fact that Rostow is the only person who made that argument should tell you plenty... Recall what I said regarding the position of eminent scholars in international law at the start of this debate. Why do you think it is that not a single other eminent authority, either pro or anti settlements, has made this argument? By the way, I do recall that John Quigley briefly considered and rejected Rostow's argument in one of his books, but he's clearly a partisan and so I haven't brought him into this. Also I don't consider him a reputable authority on the subject. There's frankly no comparison, in terms of their stature in international law scholarship, between people like Quigley and Rostow, as compared with Julius Stone or Dinstein or some of the other 'big names' we've been discussing. I don't want to dismiss Rostow's arguments just on that basis alone, and I've given my reasons - I just want to make clear that as far as international law is concerned, we're talking about two completely different orders of authoritativeness. And for what it's worth, I do consider Rostow to be far more reputable than Quigley.

Again, you are pretending that Rostow was a "nobody". He was an eminent scholar and a politician of stature who played a key role in the wording of Security Council Resolution 242.

Claiming that he is the only person who made those arguments does not cut the mustard. First of all, it ain't necessarily true. Other people support his argument. For instance you mentioned that Levy does. And I am sure there are others, I'll try and find them.

In any case, attempting to cast a shadow on his credibility on that basis alone is ridiculous. I would like you to quote me a scholar (with links) who provides logical legally sound reasons that dispute Rostow's claims. Specifically, Rostow's claims, point by point ... Please!