Friday, January 21st 2022   |

OP-ED: The Legal War Against Israel

By MOSHE DANN

For more than half a century, the International Committee of the Red Cross (ICRC)  and the international community have been engaged in a relentless battle against the right of Jews to live in the misnamed “occupied Palestinian territories” of Judea, Samaria and eastern Jerusalem.

Declaring all Jewish presence beyond the 1949 armistice lines “illegal,” they condemn Israel for violating the Fourth Geneva Convention (FGC). Acting as judge and jury in secret deliberations, they decided that Israel was guilty. And, despite objections from distinguished international legal experts, the ICRC refuses to consider any challenges or appeals.

The International Court of Justice (ICJ) joined this effort by declaring Israel’s “security barrier” and all Israeli settlements “illegal,” because they were built beyond the 1949 armistice lines. But legal ownership of that territory was defined by the British Mandate and later by the San Remo Treaty of 1920. Jordan’s claims to the territory were never recognized and were eventually renounced. Nor could the territory belong to the “Palestinians,” since no such entity existed.

Divided between two terrorist organizations, the PLO and Hamas, the Palestinian Authority is not a state. Nor does it comply with the recognized attributes of statehood. Defining “Palestine” as a single unit between the Mediterranean Sea and the Jordan River, most Arabs reject Israel’s right to exist. The nakba (catastrophe of Israel’s establishment in 1948) remains the basis of Palestinian identity.

Unlike domestic law, however, which is forged by legislatures and administrative bodies, the ICJ’s “legal” decisions reflect the positions of political bodies, such as the United Nations, or those of NGOs, like the ICRC, which are unaccountable and whose criteria for decision-making when it comes to Israel lack impartiality and objectivity.

False charges that Israel “occupies Palestinian territory” and that “settlements are illegal” feed the myth that “Jews stole Arab lands” and that “Palestinians were forced to pay the price for the Holocaust.”

Such condemnations are elements in the demonization, delegitimization and dehumanization of Israel and its Jews, employed to justify “resistance” and terrorism. In a modern rendition of the blood libel, if Israel is evil, it has no right to exist.

Here are the facts:

  • The historical right of the Jewish people to their homeland in the land of Israel was recognized in international conventions and agreements, including the League of Nations and the United Nations. Those confirmations cannot be abrogated—by anyone.
  • The Jewish people did not occupy territory that legitimately belonged to another country. In the 1967 Six-Day War, Israel occupied territory that had been conquered by Jordan and Egypt.
  • Occupation, in and of itself, is not “illegal.”  International law recognizes the right of any state to occupy territory of an aggressor in self-defense and to remain in control to protect itself until its security is assured.
  • The Fourth Geneva Convention (FGC) does not prohibit Jews from living in Judea, Samaria, eastern Jerusalem or the Golan Heights. It states: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand … The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
  • Israelis moved to the areas conquered by the IDF in 1967 voluntarily; no one was “deported or transferred.”  In fact, the Israeli government often resisted such settlement.
  • Nevertheless, the ICRC and ICJ declared that Jewish communities in those areas violate the FGC, adding their own conditions—that any assistance given by the Israeli government is also illegal. Neither this ruling nor its context is supported by the FGC. Bu even if it were applicable, it was never intended to prevent Jews from building in those areas.
  •  Article 2 of FGC states: “The Convention shall also apply to all cases of partial or total occupation of a High Contracting Party.”  Jordan and Egypt were not part of the FGC when it was enacted. Moreover, the occupation of the territories by Jordan and Egypt was never recognized, even by other Arab countries. This part of the Convention, therefore, by its own requirements, doesn’t apply. At no time was “Palestine” a state or a political entity.
  • The Oslo Accords specifically mentioned that borders and settlements were to be negotiated at a later stage, and not only didn’t prohibit their existence or expansion, but sanctioned them. Indeed, the agreements said that each party could build in the territory under its control.
  • This provided a legal basis under international law for settlements to remain and expand until otherwise determined by agreement between Israel and the P.A. But the P.A.—the PLO and Hamas—has consistently rejected any recognition of Israel’s right to exist, let alone build settlements.

The Palestinian demand for a homeland cannot be met by the current “two-state-solution,” or a state in the P.A.-controlled territory. Moreover, most Palestinians reject the P.A. as a corrupt dictatorship.

A Palestinian homeland and possible state, however, now exists as the Hashemite Kingdom of Jordan. Although most of Jordan is uninhabited, with sufficient water, it could become an oasis.

Fresh water sources exist just over Jordan’s border with Iraq, and could be transferred to the kingdom. This could offer new opportunities to Jordan and to Palestinians, especially those in UNRWA-supported towns and villages.

They could build farms and orchards, becoming productive and independent. It’s a humanitarian solution that would transform Jordan and the entire region. It’s a real, viable two-state solution. Why not give it a chance?

Moshe Dann, Ph.D., is a historian, writer and journalist living in Israel.

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