Government Committee: says 'Israel not occupation force'

[Reffo]

Under my scenario, Israel would still hold ALL the lands in the West Bank that have private title deeds by Arabs.

I never saw this anywhere in the post where you posted your scenario

No? Then what about this post below, my post #100? And at least one other as well but let's just leave it at this one.

And no, they would not have their individual property rights if their occupation would occur only on crown lands, which was my scenario. Or are you saying that such a scenario is an impossibility? Or maybe you are saying that Palestinian Arabs who have other Arab citizenship, would have greater rights to crown lands than Jews in a similar situation?

Jordan on the other hand would ONLY hold crown lands ie, lands that don't have private title deeds. So if it would settle Palestinian Arabs on those crown lands, any Palestinian Arabs even the ones who lived in places like Ramsllah and Beth Lehem etc, but who also have Jordanian citizenship, then according to you they would have to be deemed as illegal settlers. And we all know what your judges say about the Israeli settlements. So according to you, we would have the absurd situation that all Arabs AND Jews who would live in the West Bank, would be deemed as ILLEGAL SETTLERS. Mind bending stuff ...

Of course this is not true. As you probably know, title deeds are not the only kind of property right. Palestinians and Jews can both have rights to 'Crown land' arising from prior possession or a variety of other kinds of property arrangements. For example, all land in the Australian Capital Territory is 'Crown land' - nobody actually has a freehold estate over their land in Canberra, all land is held under leasehold. This doesn't mean Canberrans have no property rights over their land, and more than it would mean Palestinians who lived on Crown land had no property rights

Thank you curlyg, your statement in bold says it all. That's what I have been saying all along. I quoted legal experts who say exactly that. The emphasis is on BOTH Jews and Arabs. Not just Arabs. All should be equal before the law but according to your side of the argument, somehow the Arabs seem to be given more rights than the Jews.

It's not a tangent - I'm pointing out why your scenario is implausible because you're insisting that it's the greatest thing since sliced bread

Implausible because Israel will not choose to ethnically cleanse the West Bank, like the Arabs did in 1948? You are probably right. Implausible because the Arab countries will not confer citizenship on the Palestinian Arab refugees (except Jordan who already DID to many of them), again you are probably right. Implausible because a sitution will not arise in which Jordan will occupy the crown lands of the West Bank? Again, you are probably right.

Nevertheless, it is not uncommon when discussing points of the law, to bring up relevant scenarios in order to decide whether a ruling would make sense or not. Especially if those scenarios COULD conceivably become reality even if implausible. In the case of the Jews, the Arabs DID make my scenario a reality. I am just holding up a mirror and asking you what if the same reality would occur the other way around? Not unreasonable, at least in my opinion ...

[curlyg]

Thank you curlyg, your statement in bold says it all. That's what I have been saying all along. I quoted legal experts who say exactly that. The emphasis is on BOTH Jews and Arabs. Not just Arabs. All should be equal before the law but according to your side of the argument, somehow the Arabs seem to be given more rights than the Jews.

Not at all. Nobody has said anything about annulling property rights. Jews that had property rights in the West Bank are fully entitled to recover possession by lawful means, as Palestinians would be. This does not extend to the vast majority of settlers, who had no property rights in the West Bank prior to the occupation, however.

Implausible because Israel will not choose to ethnically cleanse the West Bank, like the Arabs did in 1948? You are probably right. Implausible because the Arab countries will not confer citizenship on the Palestinian Arab refugees (except Jordan who already DID to many of them), again you are probably right. Implausible because a sitution will not arise in which Jordan will occupy the crown lands of the West Bank? Again, you are probably right.

Nevertheless, it is not uncommon when discussing points of the law, to bring up relevant scenarios in order to decide whether a ruling would make sense or not. Especially if those scenarios COULD conceivably become reality even if implausible. In the case of the Jews, the Arabs DID make my scenario a reality. I am just holding up a mirror and asking you what if the same reality would occur the other way around? Not unreasonable, at least in my opinion ...

No, I didn't bring up any of those points re implausibility. I have no problem with theoretical scenarios, this is entirely appropriate. What's implausible is that you're changing the facts mid-scenario -- that is to say, first the Arabs are expelled, then they cease to exist, then unrelated Arabs with Jordanian citizenship are transferred to the territory. Well, I'm willing to entertain that in theory if you like, but it doesn't prove very much at all.

And by the way, you skilfully ignored most of my post.

[Reffo]

Not at all. Nobody has said anything about annulling property rights. Jews that had property rights in the West Bank are fully entitled to recover possession by lawful means, as Palestinians would be. This does not extend to the vast majority of settlers, who had no property rights in the West Bank prior to the occupation, however

Jews in general, had property rights in all of Palestine, or should I say rights to settle on crown lands to keep the terminology consistent? The Arabs did too. I gave you references which demonstrated that, dating back from the League of Nations, which ARE by international law, and later ratified by the UN too which keeps it an international law.

No, I didn't bring up any of those points re implausibility. I have no problem with theoretical scenarios, this is entirely appropriate. What's implausible is that you're changing the facts mid-scenario -- that is to say, first the Arabs are expelled,

Yes, I say that as a possible scenario. And I said it right from the beginning. Any problems with that?

then they cease to exist,

I did NOT say that at any stage. I said they would be granted citizenship by their Arab host nations. I said that right from the beginning too. Any problems with that?

then unrelated Arabs with Jordanian citizenship are transferred to the territory. Well, I'm willing to entertain that in theory if you like, but it doesn't prove very much at all

What unrelated Arabs? Are you reading what I actually wrote?

Oh and while I did revise the scenario somewhat, earlier on, I did not change anything about it for at least the last two times when I summarized the scenario and probably more than the last two times. I am tired of flicking back and checking your posts and mine just to fend off your accusations. But you still answered your own scenario not mine. For example, even after my post #100 you still responded as if you never saw my post #100 (as proof, look at the very first entry in my post #121 which was a response to your post #120).

And by the way, you skilfully ignored most of my post

The only bit that I seem to have ignored is the following ....

What you're really asking, behind all the hostile rhetoric and belligerence, is this: can someone who used to live in a territory return to it once it is occupied, even if they can't return to their specific plot of land because it is not accessible to them? I want to be clear that this is a very different situation to the Israeli settlers, who are not RETURNING to a territory where they used to live prior to being expelled. They are people who never had any property rights in the West Bank to begin with. Palestinians would still have a general right of return to their country, whereas the Israeli settlers cannot even rely on that

Either because I missed it altogether. Or because I moved on while you were editing your post and added it. Either way the first part of this very post answers it.

[Reffo]

Now let's address YOUR consistency, curlyg, or should I say lack of it?

In your post #92, you said this:

Ok, well if you don't want me to consider anything other than STRICTLY the facts of your scenario, then I am inclined to say they are all illegal settlers. But let me be clear that it is only in your thought experiment that everyone can be classed as illegal settlers - because your scenario has reduced the problem to absurdity. If we're talking about ONLY Palestinians with Jordanian citizenship being transferred, which is a very specific sub-group of the population, then this would be illegal - but this would not happen in reality. The Palestinians who were expelled and their descendants who inherited the property would be entitled to return

Here you clearly admit that both Arabs and Jews would be illegal settlers in my given scenario, according to you.

Then in your post #120 you say this:

Of course this is not true. As you probably know, title deeds are not the only kind of property right. Palestinians and Jews can both have rights to 'Crown land' arising from prior possession or a variety of other kinds of property arrangements. For example, all land in the Australian Capital Territory is 'Crown land' - nobody actually has a freehold estate over their land in Canberra, all land is held under leasehold. This doesn't mean Canberrans have no property rights over their land, any more than it would mean Palestinians who lived on Crown land had no property rights

Here you seem to imply that both Jews and Arabs may have claims to crown lands too.

But in your post #122 you seem to acknowledge those rights only for Arabs but for not Jewish "settlers" in the West Bank whom you say have not lived there before but conveniently ignoring the League of Nations declaration which earmarked all of Palestine as the homeland of the Jewish people. And the ratification of that declaration by UN resolution 80.

Not at all. Nobody has said anything about annulling property rights. Jews that had property rights in the West Bank are fully entitled to recover possession by lawful means, as Palestinians would be. This does not extend to the vast majority of settlers, who had no property rights in the West Bank prior to the occupation, however.

So which is it curlyg? Would both Arabs and Jews be illegal settlers in my scenario? Or would they both have legal claims to crown lands? Or would only the Arabs have legal claims to the crown lands? We need to establish what you are actually saying in relation to my scenario. Can you spell it out succinctly? I need you to do that so at least we can establish where we agree and where we disagree.

[Reffo]

See my post above - if Israel is the sovereign power, why doesn't it act accordingly? Why does it continue to administer the territory as occupied territory? Why does it continue to claim all the benefits that come with being a occupying power under international law, like the right to confiscate property due to military necessity? Why does it continue to subject the territory to military jurisdiction as an occupying power would? Why does it continue to apply Jordanian laws as an occupying power would? Why has its Supreme Court ruled that the territories are occupied? Why doesn't Israel officially declare its claim to the territories and annex them?

I'll only answer the part in bold at this stage. The rest, I will attempt to answer later. I need to verify or disprove some of the assertions in it. Seeing you are not offering links and quotes, to back them up, I guess I'll need to do my own research.

Now, for the item in bold: Israel annexed only East Jerusalem and the Golan which was sovereign Syrian territory prior to 1967., not part of the West Bank. I don't think Israel annexed any other territories. And in BOTH those places, Israel offered citizenship rights to the Arab or Druze population. Most in the Golan declined, many of East Jerusalem's Arabs accepted. The ones who did not, are not Israel's responsibility. Israel can't force them to take up Israeli citizenship.

The rest of the land involved in the settlements was not annexed most probably because Israel fears, yes I say fears the backlash from the international community if it would act unilaterally. They get enough grief about East Jerusalem already. Also, not acting unilaterally is in line with international commitments that it was persuaded to agree to, such as the Roadmap and Security Council Resolution 242.

[dayag]

See my post above - if Israel is the sovereign power, why doesn't it act accordingly? Why does it continue to administer the territory as occupied territory? Why does it continue to claim all the benefits that come with being a occupying power under international law, like the right to confiscate property due to military necessity? Why does it continue to subject the territory to military jurisdiction as an occupying power would? Why does it continue to apply Jordanian laws as an occupying power would? Why has its Supreme Court ruled that the territories are occupied? Why doesn't Israel officially declare its claim to the territories and annex them?

Israel hasn't annexed the West Bank (yet) because it is still hoping to trade some of that territory for peace. Israel did annex the eastern half of Jerusalem because of the strong consensus at that time that it would never be given up ever.

This does not mean that Israel doesn't have a claim to all of the West Bank under international law. What it means is that Israel wants peace and is willing to make painful concessions to obtain it. Sadly, the Arabs are not willing to make even the minimal concessions that will be necessary if peace is to be achieved.

[Reffo]

curlyg

Question 1: Prior to 1948, did Jews have a legal right to purchase land on the West Bank and settle on that land, or not? Surely they DID? They did under the provisions of the League of Nations which deemed the whole of Palestine, including the West Bank as a home for the Jewish people. Unless of course you would deem the Jews as occupiers even then? But I am sure you would not, right? So the answer to my question has to be YES, right?!

Question 2:What about after 1948, following the OCCUPATION of the West by Jordan? Surely you would agree that it would have been legal for Jews to purchase crown lands in the West Bank and settle there? Again, because of the rsame ruling by the League of nations. And of course, even with a wild stretch of the imagination, one could not negate that legal right by claiming that Israel was an occupying force, right curlyg?

Question 3: But you and your mentors seriously want us to accept that after 1967 when Jordan attacked Israel and Israel gained control of the West Bank in a defensive war, Jews suddenly lost their right to buy land in the West Bank and settle there?So what you guys are saying in reality is that because Israel won it's defensive war against Jordan, the Jews should be punished? They should lose their previous legal right to purchase land in the West Bank and settle there? Does that really make sense to you curlyg? Even if you apply the LABEL that Israel is an occupier? Do you think that was the real intent of the Geneva conventions, to punish a people who win a defensive war and because of it they should lose legal rights that they were previously entitled to? Surely you guys cannot be serious?

PS
Please remember, in my questions above, I was discussing the legal rights of the Jews, not whether those rights were able to be realized in practicality, say during the Jordanian occupation.

[curlyg]

Now let's address YOUR consistency, curlyg, or should I say lack of it?

In your post #92, you said this:

Here you clearly admit that both Arabs and Jews would be illegal settlers in my given scenario, according to you.

Then in your post #120 you say this:

Here you seem to imply that both Jews and Arabs may have claims to crown lands too.

But in your post #122 you seem to acknowledge those rights only for Arabs but for not Jewish "settlers" in the West Bank whom you say have not lived there before but conveniently ignoring the League of Nations declaration which earmarked all of Palestine as the homeland of the Jewish people. And the ratification of that declaration by UN resolution 80.

So which is it curlyg? Would both Arabs and Jews be illegal settlers in my scenario? Or would they both have legal claims to crown lands? Or would only the Arabs have legal claims to the crown lands? We need to establish what you are actually saying in relation to my scenario. Can you spell it out succinctly? I need you to do that so at least we can establish where we agree and where we disagree.

Yes, I suggest we 'start fresh', because it's not clear to me that we are talking about the same set of facts. First of all, I want to say there's no contradiction between any of the comments you just quoted. The appearance of a contradiction stems from something you've been doing a lot, which is conflating municipal law and international law. That's a perfectly understandable mistake for someone who's not trained in the field, but I'll try to explain why it's wrong.

We need to be clear about what we are talking about. To simplify, let's say there are two "kinds" of law in the world - international law, and municipal law (by which I mean the domestic laws of sovereign states). So, for example, the 4th Geneva Convention is a treaty, it is an example of international law. The Commonwealth Migration Act is Australian domestic legislation enacted by parliament, it is an example of domestic law. Each of these two types of law has different subjects, by which I mean entities that are subject to the law. The subjects of international law are sovereign states. That means that, generally speaking, only states are bound by international law (I'm simplifying for the sake of clarity). The subjects of municipal law are more diverse, but generally speaking let's say they are the government and any legal or natural persons under the jurisdiction of the state's laws. To illustrate this difference: Countries A and B sign a treaty which states that 'citizens of A will receive lighter sentences for drug offences committed in the territory of B'. This is a rule of international law that binds A, as a sovereign state, to ensure that the citizens of B get lighter sentences. Now, to implement that international obligation, A passes legislation through parliament to make sure that its domestic law complies with that obligation. That legislation binds all of the subjects of A's jurisdiction, including sentencing judges, possible drug offenders, etc. What is important to take away from all this, in short, is that international and municipal law are to quite strictly separate systems of law. What we are talking about in our discussion is STRICTLY international law.

Now, let me talk through what I see as happening at the international and municipal levels at each stage of this situation.

Question 1: Prior to 1948, did Jews have a legal right to purchase land on the West Bank and settle on that land, or not? Surely they DID? They did under the provisions of the League of Nations which deemed the whole of Palestine, including the West Bank as a home for the Jewish people. Unless of course you would deem the Jews as occupiers even then? But I am sure you would not, right? So the answer to my question has to be YES, right?!

Under international law: yes - Jews had a right under the Mandate instrument.
Under municipal law: yes - there was no law that prohibited Jews from purchasing land.

Question 2:What about after 1948, following the OCCUPATION of the West by Jordan? Surely you would agree that it would have been legal for Jews to purchase crown lands in the West Bank and settle there? Again, because of the rsame ruling by the League of nations. And of course, even with a wild stretch of the imagination, one could not negate that legal right by claiming that Israel was an occupying force, right curlyg?


After 1949, the mandate instrument had lapsed because the mandate itself no longer existed. As a result, my view is:

Under international law: yes - there was no rule of international law which prohibited Jews from purchasing property, and anything which is not expressly forbidden by international law is allowed.
Under domestic law: Not sure whether Jordan introduced laws on this issue, but let's assume yes.

Question 3: But you and your mentors seriously want us to accept that after 1967 when Jordan attacked Israel and Israel gained control of the West Bank in a defensive war, Jews suddenly lost their right to buy land in the West Bank and settle there? So what you guys are saying in reality is that because Israel won it's defensive war against Jordan, the Jews should be punished? They should lose their previous legal right to purchase land in the West Bank and settle there? Does that really make sense to you curlyg? Even if you apply the LABEL that Israel is an occupier? Do you think that was the real intent of the Geneva convention, to punish a people who win a defensive war and because of it they should lose legal rights that they were previously entitled to?

After the 1967 war:

Under international law: Yes, Jews are permitted to purchase land and settle because whatever is not prohibited by international law is permitted by it.
Under domestic law: Not sure what legislation the PLO has enacted, but let's assume yes.

At ALL relevant stages, JEWS are permitted to purchase land and settle under international law and municipal law. But the question is NOT about Jews. Art 49(6) prohibits the transfer of ANY of the occupying power's population to the occupied territory. That includes the Jewish population of the occupying power, and population of any other race or religion whatever they may be. If an American Jew buys Palestinian land and gets a residence permit in accordance with all the necessary laws and wants to live in the West Bank, there's no problem. The problem is when a member of the occupying power's population, under a decision of the occupying power's government, moves into the territory - because THIS is expressly prohibited by international law.

I hope that makes it a bit more clear. Jews and Arabs are both equally capable of claiming rights over either Crown land or private land. There is nothing in international law that prohibits Jews, just because they are Jews, from living in the occupied territory. What matters is whether they actually have property rights, not what ethnicity they are. BUT regardless of whether one is a Jew or Arab or Jamaican, if they are part of the population of the occupying power, they cannot be transferred into occupied territory.

I think that clarifies my general view. If you want me to discuss how this would apply to your scenario, could you just spell out clearly ALL of the relevant facts in a single post please?

[curlyg]

I'll only answer the part in bold at this stage. The rest, I will attempt to answer later. I need to verify or disprove some of the assertions in it. Seeing you are not offering links and quotes, to back them up, I guess I'll need to do my own research.

That's fine... But those claims are pretty uncontroversial to my knowledge.

Now, for the item in bold: Israel annexed only East Jerusalem and the Golan which was sovereign Syrian territory prior to 1967., not part of the West Bank. I don't think Israel annexed any other territories. And in BOTH those places, Israel offered citizenship rights to the Arab or Druze population. Most in the Golan declined, many of East Jerusalem's Arabs accepted. The ones who did not, are not Israel's responsibility. Israel can't force them to take up Israeli citizenship.

The Golan and East Jerusalem are slightly different situations, they're not really the subject of the present discussion because they raise different issues. My question is if Israel considers itself to be the sovereign over the West Bank, why hasn't it done what you would expect a sovereign to do in most relevant respects? To which you answer:

The rest of the land involved in the settlements was not annexed most probably because Israel fears, yes I say fears the backlash from the international community if it would act unilaterally. They get enough grief about East Jerusalem already. Also, not acting unilaterally is in line with international commitments that it was persuaded to agree to, such as the Roadmap and Security Council Resolution 242.

Come on Reffo. We know exactly why Israel isn't going to annex the West Bank and offer the Arabs there citizenship. It would be the end of Israel as a Jewish state to absorb such a large Arab population. And so Israel tries to tread this line - of being a sovereign when it wants to, when it can help to justify settlements, and being an occupying power when it wants to, when it serves its security and strategic interests. You can't have it both ways. If you're not the occupying power, you can't claim the privileges of an occupying power. You can't confiscate property on the grounds of military necessity - this is the prerogative of an occupying power, but in the absence of an occupation it is a violation of the right to property guaranteed under international law. If Israel wants to be regarded as the legitimate sovereign, it needs to face some pretty serious questions -- for one, why are you administering part of your territory under military rule, with serious curtailments of individual rights, and part of your territory as a democracy? This would probably violate so many rules of international human rights law I dare not even start thinking about it. That's why Israel doesn't claim the territory - if it did, it would have to start behaving as though this territory actually belonged to it, and that would be the end of Israel.

Israel hasn't annexed the West Bank (yet) because it is still hoping to trade some of that territory for peace. Israel did annex the eastern half of Jerusalem because of the strong consensus at that time that it would never be given up ever.

This does not mean that Israel doesn't have a claim to all of the West Bank under international law. What it means is that Israel wants peace and is willing to make painful concessions to obtain it. Sadly, the Arabs are not willing to make even the minimal concessions that will be necessary if peace is to be achieved.

This isn't really a satisfactory answer. If Israel claims the territory until such time as a final status agreement is signed, then for the duration that the territory is under its control it must treat the entire population the same way. Imagine if the US decided to administer half of its territory under martial law and curtail the rights of parts of its population, pending some negotiation with Russia over some territorial dispute. It's unthinkable. There's no stronger proof that Israel isn't the sovereign, than that Israel doesn't act as the sovereign, and further yet, doesn't even WANT to act as the sovereign. It rightly treats the territories as occupied in every way, except when it comes to trying to justify the settlements.

[curlyg]

And just to emphasise that this is not just some theoretical rambling of mine, it's got real consequences. As you know, before the ICJ issued its ruling on the construction of the security wall in the territories, the issue was considered by the Israeli Supreme Court. How was the construction of the wall justified by the Israeli government before the Supreme Court? Here's the quote from the court's reasons of how the government justified it:

28. We examined petitioners’ arguments, and have come to the conclusion, based upon the facts before us, that the fence is motivated by security concerns. As we have seen in the government decisions concerning the construction of the fence, the government has emphasized, numerous times, that “the fence, like the additional obstacles, is a security measure. Its construction does not express a political border, or any other border.” (decision of June 23, 2002). “The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the “Seamline Area,” is a security measure for the prevention of terror attacks and does not mark a national border or any other border.” (decision of October 1, 2003).


Why did the court find that the construction of the wall was legal?


32. Petitioner second argument is that the construction of the fence in the area is based, in a large part, on the seizure of land privately owned by local inhabitants, that this seizure is illegal, and that therefore the military commander’s authority has no to construct the obstacle. We cannot accept this argument. We found no defect in the process of issuing the orders of seizure, or in the process of granting the opportunity to appeal them. Regarding the central question raised before us, our opinion is that the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if this is necessary for the needs of the army. See articles 23(g) and 52 of the Hague Convention; article 53 of the Fourth Geneva Convention. He must, of course, provide compensation for his use of the land. See HCJ 606/78 Ayoob v. Minster of Defense; HCJ 401/88 Abu Rian v. Commander of the IDF Forces in the Area of Judea and Samaria; Timraz. Indeed, on the basis of the provisions of the Hague Convention and the Geneva Convention, this Court has recognized the legality of land and house seizure for various military needs, including the construction of military facilities (HCJ 834/78 Salama v. Minister of Defense), the paving of detour roads (HCJ 202/81 Tabib v. Minister of Defense; Wafa), the building of fences around outposts (Timraz), the temporary housing of soldiers (HCJ 290/89 Jora v. Commander of IDF Forces in Judea and Samaria), the ensuring of unimpaired traffic on the roads of the area (Abu Rian), the construction of civilian administration offices (HCJ 1987/90 Shadid v. Commander of IDF Forces in the Area of Judea and Samaria), the seizing of buildings for the deployment of a military force, (HCJ 8286/00 Association for Civil Rights in Israel v. Commander of the IDF Forces in the Area of Judea and Samaria). Of course, regarding all these acts, the military commander must consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework. The infringement of property rights is insufficient, in and of itself, to take away the authority to build it. It is permitted, by the international law applicable to an area under belligerent occupation, to take possession of an individual’s land in order to erect the separation fence upon it, on the condition that this is necessitated by military needs. To the extent that construction of the fence is a military necessity, it is permitted, therefore, by international law. Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers. The building of the obstacle, to the extent it is done out of military necessity, is within the authority of the military commander. Of course, the route of the separation fence must take the needs of the local population into account. That issue, however, concerns the route of the fence and not the authority to erect it. After reaching this conclusion, we must now contend with the second question before us – the question that constituted the main part of the arguments before us. This question is the legality of the location and route of the separation fence. We will now turn to this question.


But if there were no occupation and all the territory were Israeli sovereign territory? If the applicable law was just Israeli administrative (municipal) law and the international law of human rights? The wall would be illegal as a violation of the property rights of the population in question.

This is a clear example of a situation where Israel rightly relies on the law of belligerent occupation to justify its defensive measures. But again, when it comes to settlements, it tries to opt out by arguing that there is no occupation and the territory belongs to Israel...

Link to the full judgment: http://elyon1.court.gov.il/files_eng...020560.a28.htm

[Reffo]

Yes, I suggest we 'start fresh', because it's not clear to me that we are talking about the same set of facts. First of all, I want to say there's no contradiction between any of the comments you just quoted. The appearance of a contradiction stems from something you've been doing a lot, which is conflating municipal law and international law. That's a perfectly understandable mistake for someone who's not trained in the field, but I'll try to explain why it's wrong.

We need to be clear about what we are talking about. To simplify, let's say there are two "kinds" of law in the world - international law, and municipal law (by which I mean the domestic laws of sovereign states). So, for example, the 4th Geneva Convention is a treaty, it is an example of international law. The Commonwealth Migration Act is Australian domestic legislation enacted by parliament, it is an example of domestic law. Each of these two types of law has different subjects, by which I mean entities that are subject to the law. The subjects of international law are sovereign states. That means that, generally speaking, only states are bound by international law (I'm simplifying for the sake of clarity). The subjects of municipal law are more diverse, but generally speaking let's say they are the government and any legal or natural persons under the jurisdiction of the state's laws. To illustrate this difference: Countries A and B sign a treaty which states that 'citizens of A will receive lighter sentences for drug offences committed in the territory of B'. This is a rule of international law that binds A, as a sovereign state, to ensure that the citizens of B get lighter sentences. Now, to implement that international obligation, A passes legislation through parliament to make sure that its domestic law complies with that obligation. That legislation binds all of the subjects of A's jurisdiction, including sentencing judges, possible drug offenders, etc. What is important to take away from all this, in short, is that international and municipal law are to quite strictly separate systems of law. What we are talking about in our discussion is STRICTLY international law

Thank you curlyg. Let me tell you though that I do understand the difference between International Law, Domestic Law, private property rights and laws relating to crown lands.

I also have to tell you that my original question that I asked you in my post #124, still stands. Your answer above does not shed one iota of light about the seemingly three conflicting answers that you gave me about the scenario that we were discussing. Could you please explain the seeming conflict in your posts #92, #120 and #122? Because to me at least, it seems that you gave three different answers to the same question that we were discussing (namely to the same scenario).

Question 1: Prior to 1948, did Jews have a legal right to purchase land on the West Bank and settle on that land, or not? Surely they DID? They did under the provisions of the League of Nations which deemed the whole of Palestine, including the West Bank as a home for the Jewish people. Unless of course you would deem the Jews as occupiers even then? But I am sure you would not, right? So the answer to my question has to be YES, right?!

Under international law: yes - Jews had a right under the Mandate instrument.
Under municipal law: yes - there was no law that prohibited Jews from purchasing land

We both agree on this one.

Question 2:What about after 1948, following the OCCUPATION of the West by Jordan? Surely you would agree that it would have been legal for Jews to purchase crown lands in the West Bank and settle there? Again, because of the rsame ruling by the League of nations. And of course, even with a wild stretch of the imagination, one could not negate that legal right by claiming that Israel was an occupying force, right curlyg?

After 1949, the mandate instrument had lapsed because the mandate itself no longer existed. As a result, my view is:

Under international law: yes - there was no rule of international law which prohibited Jews from purchasing property, and anything which is not expressly forbidden by international law is allowed.
Under domestic law: Not sure whether Jordan introduced laws on this issue, but let's assume yes

I have to point out to you again that in this case, not only did international law did not prohibit Jews from purchasing lands in the West Bank, it positively encouraged it. How? Through the laws of the League of Nations which earmarked Palestine, including the West Bank, as a the homeland of the Jewish people. These laws have NOT died because after the lapse of the British mandate, they were ratified again by the UN. So, while we both give the same answer to this part of my question, we arrive at that same answer differently.

As for Jordanian domestic law? I don't know whether they had a specific law to prohibit Jews from purchasing lands in the West Bank but I suspect they did. As for the PLO, they are even worse. They have been carrying out death sentences against their own people who have been selling PRIVATELY owned lands to Jews.

Question 3: But you and your mentors seriously want us to accept that after 1967 when Jordan attacked Israel and Israel gained control of the West Bank in a defensive war, Jews suddenly lost their right to buy land in the West Bank and settle there? So what you guys are saying in reality is that because Israel won it's defensive war against Jordan, the Jews should be punished? They should lose their previous legal right to purchase land in the West Bank and settle there? Does that really make sense to you curlyg? Even if you apply the LABEL that Israel is an occupier? Do you think that was the real intent of the Geneva convention, to punish a people who win a defensive war and because of it they should lose legal rights that they were previously entitled to?

After the 1967 war:

Under international law: Yes, Jews are permitted to purchase land and settle because whatever is not prohibited by international law is permitted by it.
Under domestic law: Not sure what legislation the PLO has enacted, but let's assume yes.

At ALL relevant stages, JEWS are permitted to purchase land and settle under international law and municipal law. But the question is NOT about Jews. Art 49(6) prohibits the transfer of ANY of the occupying power's population to the occupied territory. That includes the Jewish population of the occupying power, and population of any other race or religion whatever they may be. If an American Jew buys Palestinian land and gets a residence permit in accordance with all the necessary laws and wants to live in the West Bank, there's no problem. The problem is when a member of the occupying power's population, under a decision of the occupying power's government, moves into the territory - because THIS is expressly prohibited by international law

Oh yes, you made yourself clear about this issue once again. But my response to it stands. What you and your scholars are clearly saying is that while Israeli Jews were permitted to purchase lands at the West Bank, prior to 1967, under international law, that no longer applies, according to you and your scholars, purely because Israel won a defensive war in 1967. In other words, they responded to Arab aggression and Israeli Jews are penalised for repelling that aggression? Does that make sense to you? Do you really think that invoking the Geneva Conventions to justify such a conclusion makes sense? Do you think that was the intention of the Geneva conventions when they were formulated? To penalise a people who win a defensive war?

If your answer to the above is still yes, as I suspect it will be, then such a position elicits two comments on my part.

The first one is a bit silly but nevertheless applicable at least in theory: Israel could easily be overcome that restriction. All they would have to do is to convince the "settlers" to give up their Israeli citizenship. And voila, the settlements would become legal according to your interpretation of international law. Israel could compensate the settlers via various sweetheart deals for any loss of entitlements associated with Israeli citizenship.

Continued on next post ...

[Reffo]

My second comment is more serious. It is to do with the scenario that we were discussing. In your post #120 you said this:

What you're really asking, behind all the hostile rhetoric and belligerence, is this: can someone who used to live in a territory return to it once it is occupied, even if they can't return to their specific plot of land because it is not accessible to them? I want to be clear that this is a very different situation to the Israeli settlers, who are not RETURNING to a territory where they used to live prior to being expelled. They are people who never had any property rights in the West Bank to begin with. Palestinians would still have a general right of return to their country, whereas the Israeli settlers cannot even rely on that

That post of yours related to the scenario that we were discussing. Contrary to your claim, Israeli Jews too have internationally recognized rights to buy land and settle in the West Bank. Rights that were explicitly recognized first by the League of Nations and later ratified by the UN. Yet suddenly, when it comes to Arabs, the fact that Jordan who would be considered an occupying power, according to your own rules, would be allowed, according to you, to settle their own cotizens of Palestinian origin, in the West Bank. It begs, the question: What about the Geneva conventions?

PS
Remember, those Jordanian citizens of Palestinian origin would only be able to "RETURN" to crown lands. Because in my scenario, all the privately owned Arab lands would still be under Israeli control. Not Jordanian rule. As I said at least in the last three times when I mentioned the scenario

[curlyg]

Oh yes, you made yourself clear about this issue once again. But my response to it stands. What you and your scholars are clearly saying is that while Israeli Jews were permitted to purchase lands at the West Bank, prior to 1967, under international law, that no longer applies, according to you and your scholars, purely because Israel won a defensive war in 1967. In other words, they responded to Arab aggression and Israeli Jews are penalised for repelling that aggression? Does that make sense to you? Do you really think that invoking the Geneva Conventions to justify such a conclusion makes sense? Do you think that was the intention of the Geneva conventions when they were formulated? To penalise a people who win a defensive war?

Technically speaking it may be legal for individual Israeli Jews to purchase land on the private market - what's prohibited is not land purchases per se, it's movement of the population. The outcome does make sense to me, yes. The problem, as far as I am concerned, is that you have continued to view this through the lens of 'Jews' and 'Arabs' - which is not the lens that international law sees things through. As I said in my previous post, the subjects of international law are states. It does not care what the ethnic composition of those states is. International law has not affected the rights and obligations of "Jews" and "Arabs" -- those rights have remained as they were. What it HAS changed is the obligations of the State of Israel, as the occupying power.

The first one is a bit silly but nevertheless applicable at least in theory: Israel could easily be overcome that restriction. All they would have to do is to convince the "settlers" to give up their Israeli citizenship. And voila, the settlements would become legal according to your interpretation of international law. Israel could compensate the settlers via various sweetheart deals for any loss of entitlements associated with Israeli citizenship.

I'm not sure that citizenship is the correct test. The words of art 49(6) are broader, they don't refer to nationals, they refer to the population of the occupying power. Of course, assuming those words do simply mean "citizenship", then even if all Israeli settlers gave up their citizenship this would still not make the settlements legal. The TRANSFER took place at a time when they were citizens, and what is prohibited by art 49(6) is the transfer. But you're probably right that non-Israeli nationals from abroad, including Jews, who manage to migrate to the occupied territories, are probably not in violation of international law. I suppose that's a loophole Israel could try to take advantage of if it really wanted to...

My second comment is more serious. It is to do with the scenario that we were discussing. In your post #120 you said this:

That post of yours related to the scenario that we were discussing. And suddenly, when it comes to Arabs, the fact that Jordan who would be considered an occupying power, according to your own rules, would be allowed, according to you, to settle their own cotizens of Palestinian origin, in the West Bank. It begs, the question: What about the Geneva conventions?

PS
Remember, those Jordanian citizens of Palestinian origin would only be able to "RETURN" to crown lands. Because in my scenario, all the privately owned Arab lands would still be under Israeli control. Not Jordanian rule. As I said at least in the last three times when I mentioned the scenario.

I do understand that. There are two separate issues. First, let's recall we're talking about international law, not domestic law. Property rights exist under domestic law, but are PROTECTED under international human rights law. So we need to look at what international human rights law has to say. Under various international instruments to which Israel is a signatory, the right to property is protected. That means that these individuals (who were expelled) who have had their rights violated are entitled to a remedy. If they lived on crown lands which are now under Jordanian occupation, they have property rights over those lands (as we were saying earlier, full ownership is not the only kind of recognised property right under any reasonable system of property law). So, to that extent, many Palestinians will still be 'caught' in the scope of the right to property and their return would not violation art 49(6).

A second aspect of international human rights law, affirmed in the universal declaration of human rights, international covenant on civil and political rights, and others, is the right to return to one's own country (this is what the Palestinians incorrectly try to base their right of return on). I suspect that, as a result, if a Palestinian lived on private land and was expelled, then Jordan took over the West Bank but FAILED to recover the private Palestinian land in question, the individual might still reasonably have a right to return to the West Bank under these rules without violating art 49(6).

[Reffo]

Technically speaking it may be legal for individual Israeli Jews to purchase land on the private market - what's prohibited is not land purchases per se, it's movement of the population. The outcome does make sense to me, yes. The problem, as far as I am concerned, is that you have continued to view this through the lens of 'Jews' and 'Arabs' - which is not the lens that international law sees things through. As I said in my previous post, the subjects of international law are states. It does not care what the ethnic composition of those states is. International law has not affected the rights and obligations of "Jews" and "Arabs" -- those rights have remained as they were. What it HAS changed is the obligations of the State of Israel, as the occupying power

Even so, my question still stands. According to you, Israel's population, both Jews and Arab Israelis. Are penalized because their country repelled Jordanian aggression and have come to control the West Bank. Suddenly they should all lose rights that they previously had under international law? That does not make sense.

[wat0n]

A second aspect of international human rights law, affirmed in the universal declaration of human rights, international covenant on civil and political rights, and others, is the right to return to one's own country (this is what the Palestinians incorrectly try to base their right of return on). I suspect that, as a result, if a Palestinian lived on private land and was expelled, then Jordan took over the West Bank but FAILED to recover the private Palestinian land in question, the individual might still reasonably have a right to return to the West Bank under these rules without violating art 49(6).

Why aren't Palestinians able to move to Israel under the right of return if they would be able to move to the West Bank under the same concept? I've read this analysis by Eyal Benvenisti and as far as my layman knowledge of international law goes it makes sense, but I'm finding it hard to do the jump to the case in which Palestinians try to move to the West Bank from Jordan.